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By    FRANK  J.  GOODNOW 

Eaton  Professor  of  Administrative  Law  and  Municipal 
Science  in  Columbia  University 


Comparative 
Administrative  Law 

An  Analysis  of  the  Administrative  Systems, 

National  and  Local,  of  the  United 

States,  England,  France, 

and  Germany 

Student's  Edition 

Two  Vols,  in  One  Octavo         -    Net,  $3.00 

The  Principles  of  the  Adminis- 
trative Law  of  the 
United  States 
Octavo  -        -        -        -        Net,  $3.00 


Q.  P.  Putnam's  Sons 

New  York  London 


Comparative 
Administrative  Law 


AN   ANALYSIS   OF   THE    ADMINISTRATIVE    SYSTEMS 

NATIONAL   AND   LOCAL,    OF  THE   UNITED 

STATES,    ENGLAND,    FRANCE 

AND    GERMANY 


BY 


FRANK  J.    GOODNOW,    A.M.,   LL.B. 

PROFESSOR  OF  ADMINISTRATIVE   LAW  IN  THE  UNIVERSITY  FACULTY  OF  POLITICAL  SCIENCE, 
COLUMBIA  COLLEGE  IN  THE  CITY  OF  NEW  YORK 


STUDENTS  EDITION 


TWO   VOLUMES   IN   ONE 

^     or  THE  \ 

UNIVERSITY 

OF 

G.  P.  pOtnam's  sons 

NEW  YORK  AND  LONDON 
1903 


•^30^ 


o 


COPYRIGHT,  1893 
BY 

FRANK  J.  GOODNOW 

Entered  at  Stationers'  Hall,  London 
By  G.  p.  Putnam's  Sons 


Ube  *nicfceri)ocftcr  pre6»,  "Rew  Kotk 


PREFACE. 


It  will  be  well  perhaps  to  explain  the  purpose  of 
the  book  which  is  herewith  submitted  to  the  public. 
For  it  is  necessary,  in  order  to  do  justice  to  all  con- 
cerned, that  the  author  apprise  his  readers  at  the  out- 
set that  he  has  not  attempted  to  treat  exhaustively  of 
the  entire  domain  of  administrative  law.  His  inten- 
tion has  been  rather  to  set  forth,  in  the  first  place,  the 
methods  of  administrative  organization  adopted  in  the 
four  countries  whose  law  is  considered,  namely,  the 
United  States,  England,  France,  and  Germany,  and  to 
state,  in  the  second  place,  somewhat  in  detail,  the  means 
of  holding  this  organization  up  to  its  work,  and  of  pre- 
venting it  from  encroaching  on  those  rights  which  have 
been  guaranteed  to  the  individual  by  the  constitution 
or  laws.  The  treatment  of  this  control  over  the  ad- 
ministration has  made  it  necessary  to  include  a  summary 
of  the  forms  and  methods  of  administrative  action ;  for 
without  an  understanding  of  them  an  adequate  con- 
ception of  the  control  over  the  administration  would 
be  impossible  of  attainment.  This  particular  portion 
of  the  work  is  confessedly  the  least  complete,  but  the 
author  considers  this  incompleteness  a  virtue  rather 
than  a  fault,  if  he  has  been  able,  as  he  hopes  he  has, 
in  the  few  pages  devoted  to  this  matter,  to  make  it 


iv  PREFACE. 

clear  to  his  readers,  in  what  manner  the  administration 
acts,  and  even  to  suggest  in  this  or  in  the  other  portions 
of  the  work  the  directions  of  the  action  of  the  admin- 
istration. A  detailed  consideration  of  the  directions 
of  administrative  action,  as  well  as  of  its  methods,  is,  it 
is  true,  a  necessity  for  the  practising  lawyer.  It  would, 
however,  be  of  slight  interest  if  not  a  positive  disad- 
vantage to  the  beginner  in  the  study  of  administrative 
law ;  while  the  general  reader,  for  whose  use  this  work 
is  also  intended,  would  probably  be  deterred  by  the 
magnitude  of  the  work  presented  by  such  a  considera- 
tion from  entering  upon  the  study  of  administrative 
law  at  all.  This  study  the  author  naturally  considers 
to  be  of  the  greatest  importance.  The  great  problems 
of  modern  public  law  are  almost  exclusively  adminis- 
trative in  character.  While  the  age  that  has  passed 
was  one  of  constitutional,  the  present  age  is  one  of  ad- 
ministrative reform.  Our  modern  complex  social  con- 
ditions are  making  enormous  demands  of  the  adminis- 
trative side  of  the  government,  demands  which  will  not 
be  satisfied  at  all  or  which  will  be  inadequately  met, 
unless  a  greater  knowledge  of  administrative  law  and 
science  is  possessed  by  our  legislators  and  moulders  of 
opinion.  This  knowledge  can  be  obtained  only  by 
study,  and  by  comparison  of  our  own  with  foreign  ad- 
ministrative methods.  It  is  in  the  hope  of  pointing  out 
the  way  to  future  students  in  this  subject  that  the 
following  pages  have  been  written.  The  needs  of  the 
legal  practitioner  have  been  met  elsewhere  by  excellent 
treatises  on  the  most  important  branches  of  administra- 
tive law,  such  as  that  of  Judge  Dillon  on  The  Law  of 
Municipal  Corporations,  that  of  Judge  Cooley  on  The 
Law  of  Taxation,  and  that  of  Mr.  Mechem  on  The  Law 


PREFACE.  V 

of  Officers,  on  which  the  author  has  placed  great  reli- 
ance. The  details  of  foreign  law  also  may  be  found  in 
excellent  treatises,  either  French  or  German,  to  which 
continual  references  have  been  made  in  the  text.  Fi- 
nally the  book  has  been  written  with  the  end  in  view 
of  supplementing  the  work  done  by  Professor  John  W. 
Burgess  in  his  Political  Science  and  Comparati/ve  Con- 
stitutional Law.  For  this  reason  as  well  as  owing  to 
the  lack  of  space,  all  matters  of  a  distinctively  consti- 
tutional character  have  been  omitted,  and  the  student 
has  been  referred  to  Professor  Burgess'  work.  It  is 
only  where  a  comprehension  of  administrative  subjects 
has  absolutely  required  a  knowledge  of  their  constitu- 
tional foundations  that  the  author  has  ventured  to  treat 
even  in  the  most  cursory  manner  of  constitutional 
questions. 

It  is  only  fair  to  add  also  that  the  work  was  begun 
by  first  studying  with  considerable  care  books  on 
foreign  administrative  law.  This  was  necessary,  owing 
to  the  complete  lack  of  any  work  in  the  English 
language  on  administrative  law  as  a  whole,  and  was 
possible  and  profitable  owing  to  the  richness  of  the 
literature  of  foreign  administrative  law.  After  a 
method  of  treatment  had  thus  been  obtained,  the 
attempt  was  made  to  apply  it  to  American  law. 
American  conditions  necessitated  numerous  and  im- 
portant modifications  of  this  method  of  treatment,  but 
the  author  is  conscious  of  the  fact  that  a  foreign  point 
of  view  will  often  be  noticed,  a  fact  for  which,  how- 
ever, he  does  not  consider  an  apology  necessary.  For 
in  the  present  stage  of  the  study  it  is  to  foreign  writers 
that  we  must  look  for  all  scientific  presentations  of  the 
subject. 


vi  PREFACE. 

The  author  deems  it  necessary  to  acknowledge  how 
much  he  is  indebted  to  the  published  works  and  per- 
sonal influence  felt  in  lectures  he  has  heard,  of  Professor 
Rudolph  von  Gneist,  of  the  University  of  Berlin,  Ger- 
many. Great  reliance  has  been  placed  also  on  the 
excellent  work,  contained  in  the  Introduction  to  the 
Local  Constitutional  History  of  the  United  States,  of 
Professor  Howard,  of  Leland  Stanford,  Jr.,  University, 
California,  whose  conclusions  have  been  in  most  cases 
accepted  without  question,  and  re-stated  in  the  text. 
He  desires  also  to  express  his  indebtedness  to  the  many 
friends  from  whom  he  has  received  most  helpful  sug- 
gestions, and  particularly  to  Professors  John  W. 
Burgess  and  Edwin  R.  A.  Seligman  of  Columbia  Col- 
lege, and  to  Doctor  Ernst  Freund  of  the  New  York 
Bar,  who  have  read  either  all  or  parts  of  what  he  has 
written.  The  author  finally  desires  to  call  the  atten- 
tion of  his  readers  to  the  fact  that  in  all  of  the  cross 
references  made  in  the  text,  the  first  volume  is  to  be 
understood  unless  the  number  of  the  volume  is  given. 

Trusting  that  an  indulgent  public  will  pardon  those 
errors  which  will  creep  in,  notwithstanding  the  greatest 
care,  he  submits  witli  hesitation  a  work  on  a  new 
subject,  and  hopes  that  what  he  has  done  will  at  any 
rate  have  the  effect  of  inducing  others  to  study  what 
has  been  of  the  greatest  interest  to  him  and  what  he 
believes  all  interested  in  social  problems  should  know 
something  about. 

Frank  J.  Goodnow. 

Columbia  College, 

September  ist,  1893. 


COMPARATIVE  ADMINISTRATIVE  LAW 


FRANK  J.  GOODNOW 

I 

ORGANIZATION 


/ 


b^ 


H, 


COMPARATIVE   ADMINISTRATIVE    LAW. 


TABLE   OF  CONTENTS. 


I 


Volume  I.     Organization.  ' 

BOOK  I.     THE  SEPARATION  OF  POWERS. 
CHAPTER  I      ADMINISTRATION. 

PAGB 

I.  Administration  as  a  function  of  government  .         .         .         i 
il.  The  administration  as  an  organization  .         .         4 

CHAPTER  II.     ADMINISTRATIVE  LAW. 

I.  Definition 6 

II.  Necessity  of  separate  treatment 9 

III.  Distinction  of  administrative  law  from  private  law    ....  14 

rV.  Distinction  of  administrative  law  from  other  branches  of  public  law,  15 

CHAPTER    III.     THE   THEORY   OF   THE   REPARATION    OF 

POWERS. 

CHAPTER  IV.     EXCEPTIONS  TO  THE  THEORY  OF  THE 
'  SEPARATION  OF  POWERS. 

I.  Executive  functions  of  the  legislature 25 

II.   Legislative  functions  of  the  executive  authority         ....       26 
III.  Executive  functions  of  the  judicial  authorities 39 

CHAPTER  V.     THE   RELATION   OF   THE   EXECUTIVE  TO  THF 
OTHER  AUTHORITIES. 

I.  Relation  to  the  legislature 31 

1.  The  legislature  the  regulator  of  the  administration  ...       31 

2.  The  control  of  the  legislature  over  the  administration               .         .33 
n.  Relation  to  the  courts '  .       34 

.   I.  Political  acts  ..........       34 

2.  Legislative  acts 35 

3.  Contractual  acts  .         .         .         ,         .         .3? 

4.  Administrative  acts  of  special  application    "^ 35 

lU.   The  position  of  the  executive 37 

ix 

J 
f 

I 


X  COI^TENTS. 

CHAPTER  VI.     TERRITORIAL  DISTRIBUTION  OF  ADMINIS- 
TRATIVE FUNCTIONS. 

I.  Participation  of  the  localities  in  administration  ....  98 

II.  The  English  method 41 

III.  The  continental  method 43 

IV.  The  sphere  of  central  administration 4} 


BOOK  II.     CENTRAL  ADMINISTRATION. 

Division  I.    The  Exkcutive  Power  and  the  CHnr 
Executive  Authority. 

CHAPTER  I.     IN  GENERAL. 


CHAPTER  II.     HISTORY  OF  THE  EXECUTIVE  AUTHORITY 
AND  POWER  IN  THE  UNITED  STATES. 

I.  The  executive  power  in  New  York  at  the  time  of  the  formation  of 

the  national  constitution •         •         •  S3 

II.  The  executive  power  in  Massachusetts 96 

III.  The  executive  power  in  Virginia .0 

rV.  The  American  conception  of  the  executive  power  in  1787         .  99 

V.  History  of  the  executive  power  in  the  early  national  government       ^  6t 

I.  Original  position  of  the  President 6t 

a.  Change  due  to  the  power  of  removal 64 

3.  The  power  of  direction 66 


CHAPTER  III.     THE  ORGANIZATION  OF  THE  CHIEF   EXECU- 
TIVE AUTHORITY  IN  THE  UNITED  STATES. 

I.  The  President 71 

I.  Administrative  powers 7* 

3.  Remedies  against  the  action  of  the  President          .        .        •        •  99 

II.  The  commonwealth  governor     ........  74 

X.  The  governor  a  political  officer 74 

3.  His  power  of  appointment      ........  76 

3.  His  power  of  removal 7^ 

.    4.  His  power  of  direction 79 

A  5>  His  power  over  the  administrative  services     .....  lo 

6.  General  position  of  the  governor Il 

7.  Remedies  against  his  action    .  .,        •        •        •         .it 


CONTENTS.  xi 

/ 

CHAPTER  IV.     THE  EXECUTIVE  POWER  AND  AUTHORITY 
IN  FRANCE. 

PAGB 

I.  General  position 83 

II.  Administrative  powers 83 

1.  Power  of  appointment '83 

2.  Powers  of  removal  and  direction 84 

3.  The  ordinance  power 85 

•-  4.  Remedies  against  his  action 87 


CHAPTER  V.     THE  EXECUTIVE  POWER  AND  AUTHORITY 
IN  GERMANY. 

I.  The  prince 89 

1.  An  authority  of  general  powers 89 

2.  Limitations  of  his  power         .         .         .         .         ,         .         .         •90 

3.  His  administrative  powers 91 

II.  The  Emperor 93 

1 .  General  position 93 

2.  Powers  relative  to  the  official  service       .         .         .         .         .         -93 

3.  His  ordinance  power 95 


CHAPTER  VI.     THE  EXECUTIVE  POWER  AND  AUTHORITY    > 
IN  ENGLAND, 

I.  General  power  of  the  Crown 97 

II.  Limitations  on  the  power  of  the  Crown 99 


Division  II.     Executive  Councils. 

CHAPTER  I.     THE  EXECUTIVE  COUNCIL  IN  THE  UNITED 

STATES. 

I.  General  position 102 

II.  In  the  national  government 103 

III.  In  the  commonwealth  governments 104 

IV.  Comparison 105 


y 


/ 


CHAPTER  II.     THE  EXECUTIVE  COUNCIL  IN  FRyJCE. 

I.  History 107      (^ 

II.  Organization 108 

III.  Functions ill 


xii  CONTENTS. 

CHAPTER  III.     THE  EXECUTIVE  COUNCIL  IN  GERMANY. 

PAGB 

I.  In  the  princely  governments 114 

II.  In  the  empire  (Federal  council) 116 

1.  Organization 116 

2.  Functions 117 

3.  Remedies  against  its  action .121 


CHAPTER  IV.     THE  ENGLISH  PRIVY  COUNCIL. 

I.  Historical  sketch 122 

II.  Organization 123 

III.  Functions 124 


Division  III.     Heads  of  Departments. 

CHAPTER  I.     DISTRIBUTION  ON   BUSINESS  AND  METHOD 
OF  ORGANIZATION. 


I.  Method  of  distributing  business .127 

II.  Power  of  organization .        ,         ,     129 


CHAPTER  II.     TERM  AND  TENURE  OF  THE  HEADS  OF 

DEPARTMENTS. 

/ 

''  I.  In  the  United  States 134 

\^-^     II.  In  France 138 

III.  In  Germany 139 

V    IV.  In  England 142 

V.  Comparison 145 


CHAPTER  III.     POWERS  AND  DUTIES  OF   HEADS  OF 
DEPARTMENTS. 

I.  Power  of  appointment ,         .         .146 

II.  Power  of  removal 149 

III.  Power  of  direction  and  supervision 150 

I.  In  the  United  States  and  England 151 

\^  2.  In  France  and  Germany I54 

IV.  The  ordinance  power       . 156 

V.  Special  acts  of  individual  application I57 

VI.  Remedies 158 

VII.  Local  subordinates  of  the  executive  departments      .        .         .         .159 


CONTENTS.  xiii 

BOOK  III.     LOCAL  ADMINISTRATION. 

CHAPTER  I.     HISTORY   OF    RURAL   LOCAL  ADMINISTRATION 
IN  THE  UNITED  STATES. 

PAGB 

I.  History  of  rural  local  administration  in  England  to  the  eighteenth 

century      ...........  162 

1.  The  sheriff 162 

2.  The  justice  of  the  peace 164 

II.  The  development  of  the  system  in  the  United  States         .         .         .  165 

1.  The  three  original  forms  of  local  administration  ....     165 

2.  The  early  American  county 166 

3.  The  early  American  town    ........     169^ 

III.  Corporate  capacity  of  the  localities  .         .         .         .         .         .         .171 

1.  Original  absence  of  corporate  capacity 171 

2.  Present  corporate  capacity  .         .         .         .         .         .         ,         •     ^73 


V 


CHAPTER  II.     RURAL  LOCAL  ADMINISTRATION  IN  THE 

UNITED  STATES  AT  THE  PRESENT  TIME.  ^ 

/ 

I.  The  compromise  system 178 

1.  The  county 178 

2.  The  town    .         . 183 

I    ,/II.  The  New  England  system 185 

'. ''  I.   The  county 185 

2.  The  New  England  town 188 

•    III.  The  southern  system 189 

CHAPTER  III.     MUNICIPAL  ORGANIZATION   IN   THE   UNITED 

STATES. 

I.  History  of  the  English  municipality  to  the  seventeenth  and  eighteenth 

centuries  .....* 193 

1.  Origin  of  the  borough 193 

2.  Development  of  the  municipal  council 195 

3.  Period  of  incorporation        .  '       .         .         ,         ,         ,         .         .  196 
II.  History  of  the  American  municipality 199 

1.  The  original  American  municipality 199 

2.  Change  in  the  position  of  the  iftunicipality 202 

3.  Change  in  the  organization  of  the  municipality    ....  206 
III.  The  present  organization  of  the  American  municipality     .         .         .  207 

1.  The  mayor  and  the  executive  departments  .         .         .       ^      .  207 

2.  The  municipal  council      " 213— 

IV.  The  village  or  borough     .         .         . 218 

1.  General  position .         . 218 

2.  The  village  organization      . 220 


xiv  CONTENTS. 

CHAPTER    IV.     GENERAL   CHARACTERISTICS   OF    LOCAL 

.     ADMINISTRATION  IN  THE  UNITED  STATES.  V 

PACK        ^ 

I.  Statutory  enumeration  of  powers      .......  223 

1.  The  centralization  of  local  matters  in  the  hands  of  an  irresponsi- 

ble central  authority 224 

2.  Local  variations  ..........  227 

3.  No  local  independence .  228 

II.  Administrative  independence  of  the  local  authorities     J .         .         .  228 

r.  Absence  of  central  administrative  control     .         .         .         .         .228 

2.  Decentralized  character  of  the  local  organization  ....  230 

III.  Non-professional  character  of  the  system 231 

CHAPTER  V.     LOCAL  ADMINISTRATION  IN  ENGLAND. 

I.  History  from  the  seventeenth  century  to  the  present  time         .         .234 

1.  Defects  of  the  old  system 234 

2.  The  reforms  of  1834  and  1835 236 

3.  Present  position  of  the  justices  of  the  peace          ....  239 
II.  The  county 241 

1.  Organization  of  the  county  council .241 

2.  Powers  of  the  county  council 243 

III.  Rural  subdivisions  of  counties 246 

1.  Local  chaos 246 

2.  The  union 248 

3.  The  parish 250 

IV.  Urban  subdivisions  of  counties 253 

1.  The  municipal  borough 253  .i.., 

2.  The  local  government  district 258 

V.  Central  administrative  control 259 

1.  Necessity  of  central  approval  of  local  action        ....  260 

2.  Central  audit  of  accounts 260 

3.  Powers  of  compulsion 261 

4.  Disciplinary  powers  over  the  local  civil  service     ....  262 

5.  Grants  in  aid  and  central  inspection 263 

VI.  General  characteristics 263 

CHAPTER   VI.     THE    FRENCH    SYSTEM    OF    LOCAL    ADMINIS-    \ 

TRATION. 

>;^       I.  The  continental  method  in  general 266 

\     II.  History  of  the  French  system  of  local  administration         .         .         .  268 

'             I.  Up  to  the  revolution 268 

2.  The  revolution    .         .         .         .     ^ 269 

I              3.  The  Napoleonic  legislation 271 

III.  The  department 272 

[             I.  The  prefect 272 

\             2.  The  council  of  the  prefecture 274 

s 
\ 


CONTENTS.  XV 

PAGR 

3.  The  departmental  commission      .......  275 

4.  The  general  council    . 277 

IV.  The  district 283 

V.  The  commune 285 

1.  History 285 

2.  The  mayor 287 

3.  The  municipal  council 289* 

VI.  General  characteristics  of  the  French  system  of  local  administration  .  292 

1.  General  grant  of  local  power 292 

2.  Central  administrative  control 292 

3.  Professional  character  of  the  local  officers 294 

CHAPTER  VII.     LOCAL  ADMINISTRATION  IN  PRUSSIA. 

I.  History 295 

1.  Conditions  in  1807 295 

2.  The  Stein-Hardenberg  reforms 296 

3.  Reactionary  period  of  1822-1872          ......  298 

4.  Reform  of  1872 299 

II.  Provincial  authorities 301 

1.  The  governor  {Oberprasident) 302 

2.  The  provincial  council 303 

3.  The  government  board  and  president 305 

4.  The  district  committee 307 

5.  The  provincial  diet 308 

6.  The  provincial  committee 311 

III.  The  circle  authorities 3^4 

1.  The  Landrath 315 

2.  The  circle  committee 3^5 

3.  The  justice  of  the  peace 316 

4.  Town  officers 31,8 

5.  The  circle  diet    .     • 320 

IV.  The  cities 328 

1.  The  city  council •         .         .  331 

2.  City  executive 332 

3.  City  departments         .         . 334 

V.  General  characteristics  of  the  Prussian  system  .        .        .        .        .  33^ 

1.  Administrative  control 33^ 

2.  Obligatory  unpaid  service 337 

3.  Subjection  of  local  administration  to  judicial  control   ,        .        .  337 


COMPARATIVE  ADMINISTRATIVE  LAW 

BY 

FRANK  J.   GOODNOW 

II 
LEGAL  RELATIONS 


COMPARATIVE   ADMINISTRATIVE    LAW. 


TABL^tf)F   CONTENTS. 


BL^^F  CO 
r^JWi;     Lega] 


VoLu^j^T;     Legal  Relations. 

BOOK  IV.     THE  LAW  OF  OFFICERS. 
CHAPTER  I.     OFFICES  AND  OFFICERS. 

PAGB 

I.  Definition i 

1.  In  general I 

2.  Distinction  between  office  and  employment 2 

II.  Methods  of  organizing  offices 6 

III.  Honorary  and  professional  officers 7 

CHAPTER  II.     THE  FORMATION  OF  THE  OFFICIAL  RELATION. 

I.  Appointment  or  election 14 

II.  The  law  of  elections  in  the  United  States         ,        ,        .        .        .18 

1.  The  election  must  be  regular           .         .         .         .        .         .         •  ^9 

2.  Necessity  of  notice          . 19 

_^     3.  Method  of  voting  (ballot)       ........  20 

4.  What  constitutes  an  election  to  office 2i 

III.  The  law  of  appointment  in  the  United  States 2± 

IV.  Acceptance  of  the  office 23 

V.  Officers  de /ado 25 

CHAPTER  III.      QUALIFICATIONS  FOR  OFFICE. 

I.  Elective  offices         . 27 

1.  Right  to  provide  qualifications 27 

2.  Usual  qualifications 28 

II.  Appointed  officers  in  the  United  States 29 

1.  General  qualifications 30 

2.  Intellectual  capacity.     The  civil-service  laws          .        .        ,        .33 
'  III.  Qualifications  for  office  in  France 46 

I'^Xienerall  quaG^cations         '      ~      '^ 46 

2.  Qualifications  of  capacity       .         .         .         .         •         .         .         <  47 

xix 


XX  CONTENTS, 

PAGB 

IV.  Qualifications  for  oflEice  in  Germany  .,,,,.  48 

*^^  General  qualifications    . 48 

2.  Qualifications  of  capacity 49 

V.  Qualifications  for  office  in  England 52 

'iT"THe^poiitical  service       . 52 

2.  The  permanent  service 53 

VI.  Comparison  of  the  various  plans 56 

CHAPTER   IV.     THE   RIGHTS  OF  OFFICERS. 

I.  Right  to  the  office .62 

II.  Special  protection    ....     i|^^|^.         ....       64 

III.  Promotion ^^^^^^     ....      66 

IV.  Compensation ^^^^1^  ....       68 

1.  Not  a  contractual  right  ....        ^^  ....  68 

2.  How  fixed  in  amount •        ...  70 

3.  How  enforced 72 

4.  Compensation  in  foreign  countries 74 

5.  Civil  pensions 74 

CHAPTER  V.     THE  DUTIES  OF  OFFICERS. 

I.  Duties  with  a  penal  sanction "  .         .         .79 

1.  Common  law  crimes  of  officers 79 

2.  Statutory  official  crimes .       80 

II.  Duties  of  a  moral  character 82 

1.  Obedience  to  orders 82 

2.  Prompt  performance  of  duties 83 

3.  Good  conduct 84 

III.  Responsibility  of  officers  for  violation  of  duty 86 

CHAPTER  VI.     TERMINATION  OF   THE  OFFICIAL  RELATION. 

I.  Expiration  of  the  term 8g 

II.  Resignation 92 

III.  Loss  of  qualifications 95 

IV.  Removal  from  office 97 

V,  By  legislative  action        ,         .         .         * 100 

BOOK  V.     THE   ADMINISTRATION   IN   ACTION. 

CHAPTER  I.     DISTINCTION  OF  THE  METHODS  FROM 
THE  DIRECTIONS  OF   ADMINISTRATIVE  ACTION.        loi 

CHAPTER  II.     EXPRESSION  OF  THE  WILL  OF  THE  STATE. 

I.     Unconditional  statutes   . 106 

II.     Conditional  statutes        .         .         .         .         .         .         .         .         .     109' 

1.  Administrative  ordinances      .         .         .         .         .         •         •         .110 

2.  Special  administrative  orders  .         .         •         •         •         •         .112 


CONTENTS,  xxi 

CHAPTER  III.     EXECUTION  OF   THE  WILL  OF  THE  STATE. 

PAGE 

I.     Means  of  execution 119 

1.  Imposition  of  penalties 119 

2.  Enforced  performance  of  the  act  ordered     .         .        ,         ,         ,120 

a.  Execution  of  the  law  by  the  payment  of  a  sum  of  money      .  120 

b.  Arrest 121 

c.  Application  of  physical  force 122 

II.     Methods  of  execution 123 

.r,^,JL.  Judicial  process 124 

2.  Administrative  executi^^^ 127 


:ecut^^^^^ 
^MMINl 


CHAPTER  IV.  ^^|PC>CIALISTIC  ACTION  OF  THE 

lDMINISTRATION.  130 

BOOK  VI.     THE  CONTROL  OVER  THE  ADMINISTRA- 
TION. 

Division  I.     The  Methods  of  Control. 

CHAPTER  I.     FORMATION  OF  THE  CONTROL. 

I.     Necessity  of  control 135 

II.     Interests  to  be  regarded ,  137 

III.     Kinds  of  control,  and  particularly  the  administrative  control          .  140 

1.  The  administrative  control 140 

2.  The  judicial  control 142 

3.  The  parlimentary  or  legislative  control          .....  143 

Division  II.     The  Judicial  Control.      \_y 

CHAPTER  I.     ANALYSIS  OF  THE  JUDICIAL  CONTROL. 

I.  Use  of  ordinary  judicial  institutions 144 

II.  Administrative  jurisdiction 146 

III.  Kinds  of  judicial  control 147 


^ 


CHAPTER  II.     CONTROL  OF  THE  CIVIL  COURTS. 


I.  Suits  by  or  against  the  government  .... 

1.  Suits  by  the  government  against  individuals 

2.  Suits  by  individuals  against  local  corporations 

3.  Suits  by  individuals  against  the  central  government 

a.  The  English  rule 

b.  The  rule  in  the  United  States  .... 
S/'  c.  The  continental  rule 


149 
150 
152 
154 
154 
156 
161 


xxii  CONTENTS, 


V 


FAGB. 

II.  Suits  for  damages  against  officers 163 

I.  The  English  rule 163 

The  Roman  rule ,     169^ 

a.  The  modification  of  the  Roman  rule  in  France  .        ,        .172 

b.  The  modification  of  the  Roman  rule  in  Germany      .        ,        .176^ 

CHAPTER  III.  CONTROL  OF  THE  CRIMINAL  COURTS. 

I.     Power  of  the  police  courts 178- 

II.     Power  of  the  criminal  courts  to  punish  officials.      Method  of  prose- 
cution   ^^^^ 179 

1.  Private  prosecutor    .  .    ^^^^^  .180 

2.  The  United  States  district  attome^H|^^k    .  .181 

3.  Public  prosecutor  T^^^P   ....     186 


CHAPTER   IV.     THE  ADMINISTRATIVE  JURISDICTION 
IN  ENGLAND  AND  THE  UNITED  STATES. 

I.  Characteristics  of  the  administrative  jurisdiction  in  general       .         .  190 

II.  History  of  the  English  method         .......  192 

1.  History  to  the  beginning  of  the  eighteenth  century         .         .         .  192 

2.  History  in  the  United  States 198' 

CHAPTER  V.      THE  ADMINISTRATIVE  JURISDICTION  OF 
THE  HIGHER  COURTS. 

I.  At  common  law        ..........  200 

1.  The  special  remedies 20a 

2.  Prerogative  character  of  the  writs  . 202 

3.  The  purpose  of  the  writs 204 

4.  Questions  considered  on  the  writs 205 

5.  Distinction  between  legal  and  equitable  remedies   ....  209 

6.  Administrative  jurisdiction  of  the  United  States  federal  courts        .  21Q 
II.  Special  and  statutory  administrative  jurisdiction  of  the  lower  courts,  214 

1.  Appellate  jurisdiction  of  courts  of  quarter  sessions  or  county  courts,  214 

2.  Special  case 2i6- 

CHAPTER  VI.     THE  ADMINISTRATIVE  JURISDICTION 
IN   FRANCE. 

I.  History .         .         .       "T  217 

II.  Reasons  for  the  retention  of  the  system 220 

1.  Need  of  special  courts 220 

2.  Need  of  an  inexpensive  and  informal  procedure      ....  221 
III.  General  characteristics  of  the  French  system 221 

1.  Administrative  courts,  courts  of  enumerated  jurisdiction         •         .  221 

2.  Judges  not  independent  of  the  administration         ....  223 

3.  Judges  professional  in  character 224 

4.  Great  freedom  of  appeal •  225 


CONTENTS,  xxiii 

PAGB 

IV.  Nature  of  the  remedies 226 

1.  The  general  jurisdiction  of  the  administrative  courts       .         .         ,  226 

2.  Appeal  to  the  Council  of  State  for  excess  of  powers        .         .         ,  229 
V.  The  administrative  courts ,  233 

1.  General  administrative  courts  ;   the  councils  of  the  prefecture          ,  233 

2.  Special  administrative  courts 239 

a.  Educational  courts 236 

b.  The  councils  of  revision 237 

3.  The  supreme  administrative  court,  the  Council  of  State  .         .238 


t^HKdi 
^j^m  G 


CHAPTER  VII.     T^^DMINISTRATIVE  JURISDICTION 
GERMANY. 


I.  History 240 

-I.  From  1806  to  the  formation  of  the  empire 240 

2.  Since  the  formation  of  the  empire 243 

II.  The  general  characteristics  of  the  German  system    ....  243 

1.  General  canons  of  distinction 243 

2.  The  administrative  jurisdiction  of  the  ordinary  courts    .         ,         .  244 
III.  The  administrative  courts  in  Germany 245 

1.  Imperial  courts 245 

a.  The  imperial  poor-law  board     ...,.,,  245 

b.  Imperial  fortress  belt-commission 246 

c.  Imperial  railway  court 246 

d.  Imperial  patent  ofl&ce 246 

e.  The  disciplinary  court  and  chambers 247 

f.  The  imperial  superior  marine  office 247 

2.  The  Prussian  administrative  courts          .  -* 248 

a.  Their  jurisdiction 248 

b.  Their  organization 251 

CHAPTER  VIII.     CONFLICTS  OF  JURISDICTION.  257 


Division  III.     The  Legislative  Control. 

CHAPTER  I.     HISTORY  OF  THE  LEGISLATIVE 

CONTROL.  262 


^r 


CHAPTER  II.     THE  POWER  OF  THE  LEGISLATURE  TO 

REMEDY  SPECIAL  ADMINISTRATIVE  ABUSES.  266 

I.  Where  the  administration  is  independent  of  the  legislature  (United 

States  and  Germany) 267 

II.  Where  the  administration  is  dependent  upon  the  legislature  (France 

and  England) 271 


xxiv  CONTENTS. 

FAGS 

CHAPTER  III.     THE  LEGISLATIVE  CONTROL  OVER  THE 
FINANCES. 

I.  Control  over  receipts 275 

II.  Control  over  expenses      .         ,         , 279 

III.  Examination  of  accounts.  ........     291 

CHAPTER  IV.     IMPEACHMENT.  296 

List  of  Authorities 303 

Index iHk.*       •       •       •       •    309 


n. 


TABLE  OF  CASES  CITED. 


R.3 


Eq., 


436 


Ahleman  v.  Booths  21  How.,  506  . 
Alden  v.  Alameda  Co.,  43  Cal.,  270 
Anderson  v.  Dunn,  6  Wheaton,  204 
Andrews  v.  Portland,  79  Me.,  484  . 
Antoniv.  Greenhow,  107  U.  S.,  769 
Astor  V.  Mayor,  62  N.  Y.,  567 
Attorney-General  y .  Bar  stow,  4  Wis.,  467 

V.  Bishop  of  Manchester,  L. 

V.  Boston,  123  Mass.,  460 

V.    Detroit    Common    Council,    58    Mich., 

215,  219 

V.  Squires,  14  Cal.,  13 

Augusta  V.  Sweeny,  44  Ga.,  463 
Aurora,  The  Brig,  7  Cranch,  382  . 
Badger  v.  United  States,  93  U.  S.,  599,  603 
Bailey  v.  Mayor,  3  Hill,  N.  Y.,  531 
Baldwin  v.  Kansas,  81  Ala.,  272    . 
Baltimore  v.  Board  of  Police,  15  Md.,  376 

V.  Johnson,  62,  Md.,  225 

Bank  of  Chenango  v.  Brown,  26  N.  Y.,  467, 

Barbour  \.  U.  S.,  17  Ct.  of  CI.,  149 

Barker  v.  T'^^//*?,  3  Cowen,  N.  Y.,  686  . 

Barry,  Ex  parte,  2  How.,  65  .         .         . 

Bealv.  McVicker,  8  Mo.  App.,  202 

Belly.  Hearne,  19  How.,  252 

Benson  v.  Mayor,  10  Barbour,  N.  Y. ,  223 

Biddley.  Willard,  10  Ind.,  t2 

Binninger,  In  re,  7  Blatchford,  U.  S.  C.  C,  159 

Blake  V.  United  States,  14  Ct.  of  CI.,  462 

Bliss  V.  Lawrence,  58  N.  Y.,  442     . 

Bloomfieldw.  Charter  Oak  Bank,  121  U.  S.,  I2I 

Blount's  Trial         .... 

Board  of  Police  y.  Grant,  17  Miss,,  77 

Bonner  v.  United  States,  9  Wall.,  156 


469 


VOL. 

PACK 

.   II. 

213 

.   II. 

153 

.   II. 

269 

.   II. 

270 

II.  257, 

285 

.    I. 

225 

.   II. 

208 

.    I. 

lOI 

.   II. 

>T<I 

205 

"3» 

11.27 

"5 

.  II. 

100 

.  II. 

lOI 

.   I. 

28 

.  II.  90,  94 

I.  226,  II 

152 

.  II. 

72 

.   I. 

204 

.  II. 

112 

I.  131,  II 

270 

.  II. 

94 

.  II. 

27 

.  II. 

212 

.  II. 

71 

.   I. 

158 

.   I. 

14 

.  II. 

94 

.  II. 

212 

.  II. 

94 

.  II. 

71 

I.  172 

,  188 

.  II. 

5 

.  II. 

78 

.  II. 

157 

XXVI 


TABLE  OF  CASES  CITED. 


Booth  y.  United  States,  21  How.  y  s<^ 

Boweriack  v.  Morris,  Wallace's  Reports,  C.  C,  119 

Brewer  v.  Davis,  9  Humph.,  Tenn.,  208 

V.  Kidd,  23  Mich.,  440 

Brodheady.  Milwaukee,  19  Wis.,  624      . 
Brown  v.  Turner,  70  N.  C,  93 

V.  United  ^taUs,  6  Ct.  of  CI.,  177 

Buchanan  v.  Alexander,  4  How.,  20 

Buck  V.  City  of  Lockport,  6  Lansing,  N.  Y.,  251 

Bunting  y.  Gales,  77  N.  C,  283 

Burch  V.  Hardwicke,  23  Grattan,  Va.,  51 

Burnett y.  Newark,  28  111.,  62 

Burnham  v.  Morrissey,  14  Gray,  Mass.,  226 

Butler  V.  Penna.,  10  How.,  402 

Butterworth  y .  United  States,  112  U.  S.,  50 

Campbell  y.  United  States,  107  U.  S.,  407 

Cherokee  Nation  v.  Georgia,  5  Peters,  i  . 

Christy,  Ex  parte,  3  How.,  392 

O'/y  of  Rochester  v.  T'^^ww  of  ^.us'i,  80  N.  Y.,  302 

Clicquofs  Champagne,  3  Wall.,  114 

Clodfeltery.  State,  86  N.  C.,  51       • 

Commonwealth  v.  Briggs,  7  Pickering,  Mass.,  176 

V.  Byrne,  20  Grattan,  Va.,  165,  195 

V.  City  of  Roxbury,  9  Gray,  Mass.,  451 

■  v.  Commissioners,  I  S.  &  R.,  Pa.,  380 

V.  Dennison,  24  How.,  66 

V.  Hardin,  Barry,  K'y,  160 

V.  King,  8  Gray,  Mass.,  501 

V.  Knapp,  10  Pickering,  Mass.,  477 

V.  McClelland,  83  Kentucky,  686 

V.  Neeser,  44  Pa.  St.,  341 

V.  Simons,  7  Philadelphia,  167 

V.  Slifer,  25  Pa.  St.,  23 

V.  Swank,  79  Pa.  St.,  144 

V.  Tuck,  20  Pickering,  Mass.,  356 

V.  Willard,  22  Pickering,  Mass.,  476 

V.  Williams,  79  Kentucky,  42 

V.  Williams,  9  Gushing,  Mass.,  582 

Confiscation  Cases,  20  Wall.,  92 
Conway  v.  City  of  St.  Louis,  9  Mo.  App.,  488 
Conner  y.  Mayor,  5  N.  Y.,  285 
Cotton  V.  Ellis,  7  Jonefe,  N.  C.,  545 
Converse  y.  U.  S.,  21  How.,  463     . 
Cunningham  v.  Mitchell,  67  Pa.  St. 
Daley.  Irvdn,  78  111.,  170,  181 
Dalton,  Ex  parte,  44  Ohio  St.,  142  . 


153, 


5" 


VOL. 

PACK 

.   II. 

213 

.   II. 

100 

.   II. 

19 

.   II. 

213 

.  II.  19,  20 

I.  20, 

tl.  3 

.   II. 

165 

.   II. 

71 

.   II. 

204 

.      .11. 

100 

.     .   II. 

205 

.   II. 

112 

.   II. 

270 

[.  12,  II.  69 

100 

158,  II.  213, 

216 

.    I. 

156 

.    I. 

34 

.   II. 

212 

.    I. 

174 

.    I. 

18 

.    II.  159, 

160 

.   II. 

184 

.   II. 

122 

.    I. 

172 

.   II. 

204 

.    II.  203 

213 

.   II. 

99 

.   II. 

182 

.   II. 

182 

.  II.  I 

3,19 

II.  63 

204 

.   II. 

182 

.   II. 

100 

.   II. 

63 

.   II. 

184 

.    I. 

18 

.   II. 

99 

.   II. 

182 

.    I. 

73 

.   II. 

26 

.   II. 

69 

.   II. 

208 

.   II. 

68 

.   II. 

166 

.   II. 

20 

.   II. 

271 

TABLE  OF  CASES  CITED, 


XXVll 


DarUy  v.  The  Queen^  12  Clark  &  Finlay,  520,  541 

V.  State,  8  Blackford,  Ind.,  329   . 

Darlington  v.  New  York,  31  N.  Y.,  164 

Barrow  v.  People,  8  Col.,  417 

Dartmouth  College  v.   Woodward,  4  Wheaton,  636 

Denton  v.  Jackson,  2  Johnson  Ch.,  N.  Y.,  320 

Detroit  V.  Redfie Id,  ig  Mich.., 'i'jt     . 

Detroit  Free  Press  Co.  v.  Auditors,  47  Mich.,  135 

Dickson  V.  People,  17  111.,  191 

I^gg^  V.  State,  49  Ala.,  311     . 

Dolan  V.  The  Mayor,  etc.,  68  N.  Y.,  274 

Donaldson,  Ex  parte,  44  Mo.,  149  . 

Dowv.  Chicago,  11  Wall.,  108 

Dubuc  V.  F(?jj,  19  La.  Ann.,  210    . 

Dugan  V.  United  States,  3  Wheaton,  172 

Dunlop  V.  Munroe,  7  Cranch,  U.  S.,  242 

Dullam  V.  Wilson,  53  Mich.,  392  . 

Durandv.  Hollis,  4  Blatchford,  C.  C,  451 

Eastman  v.  Curtis,  4  Vt.,  6i6 

Edwards  v.  United  States,  103  U.S.,  471 

^/i<7/  V.  Swartout,  10  Peters,  U.  S. ,  37   . 

^//jV  v.  ^ar/  6^ri?;j/,  i  Simon,  214     . 

V.  State,  4  Ind. ,  i  . 

Erskine  v.  Hohnbach,  14  Wall.,  613 
Evans  v.  Trenton,  24  N.  J.  L.,  764 
Evansvilley.  State,  118  Ind.,  426  . 
Ex  parte,  see  name  of  party 
Farrington  v.  Turner,  53  Mich. ,  27 
/^tV/i/,  Ex  parte,  5  Blatchford,  C.  C,  63 

V.  C/ar>&,  U.  S.  Sup.  Ct.,  Oct.  term,  189 

Fiskv,  Police  Jury,  116  U.  S.,  131 
Fitzsimmons  v.  Brooklyn,  102  N.  Y.,  536,  539 
Fordv.  Commissioners,  22  Pac.  Rep.,  278 
Foster  \.  Kansas,  112  U.  S.,  201     . 
Foutw.  State,  3  Haywood,  Tenn.,  98 
Fremont  v.  Crippen,  10  Cal.  211      . 
Gaines  v.  Thompson,  7  Wall. ,  347  . 
Galesburgy.  Hawkinson,  75  111.,  152 
6^a/^j  V.  Delaware  Co.,  12  Iowa,  432 
Gibbons  \.  United  States,  8  Wall.,  269     . 
Goddardv.  Petersham,  136  Mass.,  235     . 
Gonzales  v.  State,  26  Texas,  197 
Gordon  v.  United  States,  117  U.  S.,  697  . 
Graham  v.  Norton,  15  Wall.,  247  . 
Gramnlle  v.  County  Commissioners,  97  Mass.,  193 
Gratiot  y.  United  States,  4  How.,  Bo 


VOL.  PAGR 

. 

.   II.    62 

.   II.    96 

I.   202 

.  II.  27,  29 

.  'I.    12 

.    I.   172 

.  II.   68 

.  II.    3 

.  II.   96 

.  II.   26 

.  II.   26 

.  II.  184 

.  II.  209 

.  II.   98 

.  II.  149 

.  II.    3 

.  1.82.99 

.   I.   74 

.  II.    3 

.  n.  94 

.   I.  151 

.  II.  210 

.  II.    3 

.  II.  166 

.  II.   68 

1.22: 

r,  II.  22,  27 

. 

.  II.   20 

1. 72, 1 

56,  II.  208 

I.   28 

.  II.   70 

.  II.  68,  70 

II.   lOI 

II.   99 

.  II.  182 

II.  204 

.  II.  205 

I.   24 

.  n.  94 

[1. 157, 159 

II.   68 

II.  183 

I.   24 

II.  213 

II.  204 

I.  156 

XXVlll 


TABLE  OF  CASES  CITED. 


Green  v.  Burke,  23  Wendell,  N.  Y.,  490,  503 

V.  Mumford,  5  R.  I.,  472 

Gregory  V.  New  York,  113  N.  Y.,  416 
Grier  v.  Taylor,  4  McCord,  206 
Gulick  V.  New,  14  Ind.,  93 
Hadley  v.  Albany,  33  N.  Y.,  603     . 
Hall,  In  re,  50  Conn.,  131 
Hamilton  County  v.  Mighels,  7  Ohio  St.,  109 
Hamlin  v.  Kassafer,  15  Oregon,  465 
Hartford \.  Bennett,  10  Ohio  St.,  441 
Hartman  v.  Greenhow,  102  U.  S.,  672 
Hatch  V.  Mann,  15  Wendell,  44 
Hayburn^s  Case,  2  Dallas,  408 
Hennen,  Ex  parte,  13  Peters,  230    . 
Hightower  v.  Oberbanker,  65  Iowa,  347 
Higley  v.  Bunce,  10  Conn. ,  436 
Hilly.  Boston,  122  Mass.,  344 
Hinze  v.  People,  92  111. ,  406    . 
^*V^  V.  5/fl/f^,  9  Yerger,  Tenn. ,  198 
A'<?>^<?  V.  Field,  10  Bush,  Ky.,  144     . 

V.  Henderson,  4  Devereux,  Law  N.  C,  I,  21 

Hooten  v.  McKinney,  5  Nev.,  194  . 
Hornbeck  v.  Westbrook,  9  Johnson,  N.  Y.,  73 
.fi^«^  V.  Cb^y^,  44  Iowa,  339     . 
In  re,  see  the  name  of  party. 
Insurance  Co.,  Ex  parte,  Il8  U.  S.,  61 
In  the  matter  of,  see  name  of  party. 
Ireland \.  Free  Borough,  12  Co.,  120 
Jackson  y.  Cory,  8  Johnson,  N.  Y.,  385 

V.  Hartwell,  8  Johnson,  N.  Y.,  422 

V.  Schoonmaker,  2  Johnson,  N.  Y.,  230 

Jarvin,  Ex  parte,  9  Dowl.,  P.  C,  120    . 
Jeffries  y.  Harrington,  17  Pac.  Rep.,  Col.,  505 
Johnson  v.  United  States,  4  Ct.  of  CI.,  248 
Johnston  v.  Wilson,  2N.  H.,  202-  . 
Kahn  v.  State,  93  N.  Y.,  291  . 
Kaine,  In  re,  14  How.,  103     . 
Kavanaugh  v.  State,  41  Ala.,  399    . 
Kaysery.  Trustees,  16  Mo.,  88 
Kelly  y,  Wimberly,  61  Miss.,  548    . 
Kendall  y.  United  States,  12  Peters,  524 
Kennardy,  Louisiana,  92  U.  S.,  480 
Kilbourny.  Thompson,  103  U.  S.,  168 
King  V.  Barker y  i  Wm.  Blackstone,  352 

V.  Justices,  4  Dow.  &  Ry.,  735 

V.  Severn  ^  Wye  Ry  Ci?.,  2  B.  &  Aid.,  644 


35 


VOL.  PAGB 

II.     26 

II.   209 

II.    100 

II.   208 

II.     23 

II.     21 

II.  28,  32 

I.  42,  174 

II.     25 

II.     24 

II.   257 

II.     72 

I.     24 

L  149. 

II.  98,  99 

II.   78 

II.  112 

172,  174,  II.  344 

II.   23 

II.  182 

II.   23 

11.  8,  93 

II.   63 

I.  172 

II.   28 

69, 


.      II.      212 


I. 

197 

I. 

172 

I. 

172 

I. 

172 

II. 

216 

II. 

32 

II. 

157 

II. 

22 

II. 

69 

II. 

211 

II. 

3 

I. 

24 

II. 

26 

ii.  155 

,165 

211 

.  II.  87.  99 

206 

II. 

269 

II. 

202 

II. 

205 

II. 

204 

TABLE  OF  CASES  CITED. 


XXIX 


Kneib  v.  People,  6  Hun,  N.  Y.,  238 

Knowless.   Yeates,  31  Cal.,  82 

Koratz  v.  Franklin  Co. ,  76  Pa.  St. ,  154  . 

Langfordy.  U.  S.,  loi  U.  S.,  341 

Lansing  v.  County  Treasurer ^  i  Dillon,  C.  C,  522 

Lawrences.  Rice^  12  Mete,  Mass.,  527,  533 

Levy  Court  v.  Coroner,  2  Wall. ,  501 

I^wis  V.  State,  96  N.  Y.,  71    . 

Lindabury  v.  Freeholders,  47  N.  J.  L.,  417 

Little  V.  Barreme,  2  Cranch,  170     . 

Longacre  v.  6*^/^,  3  Miss. ,  637 

Lorillardv.  Town  of  Monroe,  ii  N.  Y.,  392 

Lucas  \.  Shepherd,  16  Ind.,  368 

Luther  v.  Borden,  7  How.,  i  .         . 

Marbury  v.  Madison,  i  Cranch,  137        , 

Mayor  v.  Furze,  3  Hill,  612    . 

V.  5/^/^,  15  Md.,  376   . 

McCullough  V.  Commonwealth,  67  Pa.  St.,  30 

Mclniire  v.  ^<?^</,  7  Cranch,  504    . 

McKeever  v.  United  States,  14  Ct.  of  CI.,  396 

McMillan  v.  Anderson,  95  U.  S.,  37 

Melvin's  Case,  68  Pa.  St.,  333 

Memphis  v.  Halsey,  12  Heiskell,  Tenn.,  2IO 

Meriwether  y.  Garrett,  102  U.  S.,  472     . 

Merryman,  Ex  parte  Taney's  Rep. ,  246 

Metropolitan  Board  of  Health  v.  Heister,  37  N,  Y.,  661 

Milwardy.  Thatcher,  2  T.  R.,  81  . 

Mississippi  v.  yohnson,  4  Wall.,  475 

Morey  v.  Town  of  New  fane,  C  Barb.,  N.  Y.,  545 

Morgan  v.  Register,  Hardin,  K'y,  609     . 

V.  United  States,  14  Wall.,  31    . 

Morrely.  Haines,  2  N.  H.,  246 

Mowers  v.  Smedley  et  al,  6  Johnson's  Ch.,  N.  Y.,  79 

Murray's    Lessee   v.   Hoboken  Land  and  Improvement 

How.,  272 

Nabob  of  Carnatic  v.  East  India  Co.,  i  Vesey,  Jr.,  375 

Neagle,  In  re,  135  U.  S.,  i,  64-68  . 

New  Jersey  v.   Wilson,  7  Cranch,  164     . 

Newman  v.  Beckwith,  61  N.  Y.,  205 

Nichols  V.  Comptroller,  4  Stew,  and  Port.,  Ala.,  154 

Matter  of,  6  Abbott's  New  Cases,  N.  Y.,  494 

North  Hempstead  y.  Hempstead,  2  Wendell,  N.  Y.,  109 

Norton  v.  Shelby  Co,,  118  U.  S.,  425,  442 

O'Hara  v.  5/iz/^,  II2  N.  Y.,  146      . 

Ohio  V.  Covington,  29  Ohio  St.,  102        .         •        • 

CfLeary  v.  Board  of  Education,  93  N.  Y.,  I     .         • 


VOL.  PAGB 

11.   112 

.   II.     20 

.   II.     69 

II.  157,  159 

.   II.   211 

.   II.     90 

.     I.   173 

.   n.    159 

.  II.   68 

.     I.   156 

.   II.     26 

I.^ 

p.  173, 185, 228 

.   II.     96 

.   I.   34 

II.  23,  82,  211 

.  II.   77 

.  II.  22,  28 

II.  180,  182 

.   II.   211 

.   II.   157 

.   II.   127 

.   II.    20 

.   II.   210 

.    I.    12 

I.  74,  II.  208 

.    .    I.   225 

.   .  II.   95 

.  I.  34,  74 

I.  165,  II.  152 

.  II.  210 

.    .  II.  157 

.    .  II.    5 

.,  II.  202 

Co 

.  18 

II.  128,  151 

.    .   I.   34 

I.  32,  64-66,  72 

.    .   I.   13 

.  II.   90 

.    II.  73,  287 

.   .  II.   98 

.   .   I.  I7i» 

.  II.   25 

.  II.  156 

.  II.   27 

.  II.   70 

XXX 


TABLE  OF  CASES  CITED, 


Ole  Mosness,  In  the  matter  of,  39  Wis.,  509,  511      . 

Olmsteadv.  The  Mayor,  etc.,  42  N.  Y.  Super.  Ct.,  487 

Olmsted  y.  Dennis,  77  N.  Y.,  378    . 

Orono,  The  Schooner,  i  Gallison  C.  C,  137 

Oshkosh  V.  Schwartz,  55  Wisconsin,  483 

Face  V.  People,  50  111.,  432 

Parker  v.  Smith,  3  Minn.,  240 

Patterson  v.  Miller,  2  Mete.  K'y,  493,  496 

V.  United  States,  2  Wheaton,  221 

Patton  V.  United  States,  7  Ct.  of  Claims,  362 
Peacock  V.  State,  42  Ind.,  393 
Peck  V.  Rochester,  3  N.  Y.  Sup.,  872 
Penn.  v.  Lord  Baltimore,  i  Vesey,  467 
People  V.  Albertson,  55  N.  Y.,  50     . 

ex.  rel,  Killeen  v.  Angle,  109  N.  Y.,  564 

V.  Auditors,  82  N.  Y.,  80    . 

V.  Beach,  19  Hun,  N.  Y.,  259 

V.  Bennett,  29  Mich.,  451     . 

V.  Betts,  45  N.  Y.,  660 

V.  Bissell,  19  111.,  229 

V.  Board  of  Apportionment,  64  N.  Y.,  627 

V.  Board  of  Fire  Coms.,  73  N.  Y.,  437 

V.  Board  of  Police,  39  N.  Y.,  506 

V. ,  72  N.  Y.,  415 

V.  Brady,  56  N.  Y.,  182 

V.  Brooks,  I  Denio,  457 

V.  Canal  Board,  55  N.  Y.,  390      . 

V.  Carrique,  2  Hill,  N.  Y.,  93 

V.  Civil  Service  Boards ^  103  N.  Y.,  657 

V.  Clute,  50  N.  Y.,  451 

V.  Collins,  19,  Wendell,  N.  Y.,  56 

V.  Commissioners,  30  N.  Y.,  72    . 

V.  ,  82  N.  Y.,  506  . 

V.  Common  Council,  77  N.  Y.,  503 

V.  Common   Council  of  Buffalo,  16 

affirmed  in  38  Hun,  N.  Y.,  637 

V.  Coon,  15  Wendell,  N.  Y.,  277 

V.  Corporation  of  New  York,  3  Johnson's  Cases 

V.  Cowles,  13  N.  Y.,  350 

V.  Curtis,  50  N.  Y.,  321 

V.  Dayton,  55  N.  Y.,  380     . 

V.  Detroit,  28  Mich.,  228      . 

V.  Draper,  15  N.  Y.,  532     . 

V.  Durston,  6th  Rep.  N.  Y^  Civ.  Serv 

V.  Fairchild,  67  N.  Y.,  834  . 

V.  French^  119  N.  Y.,  493    . 


Com 


1. 149,  n 


Abbott's  New 


N.  Y 


231 


roL. 
II. 
II. 
II. 

I. 

I. 
II. 
II. 
II. 
II. 
II. 
II. 


PAGB 

28 

2 

93 
74 
18 

94 
29 
26 

211 
72 

182 


II-  33,  35 


I. 
I. 
II. 
II. 
II. 
I. 
II. 
II. 
II. 
98,  99,  206 
II.     206 
II.  87 
II. 
II. 
II. 
II. 
I. 
22,  29,  97 
II.  205,  206 
II. 
II. 
II. 
Cases 

I.  215,  II.  205 

.     II.       79 

79 .     II.     202 

.     II.       20 

I.  82,  II.  208 

I.  131,  II.  270 

I.     227 

I.  204,  225 

.     II.       36 

.     II.     203 

.     II.     206 


II. 


34 
226 

36 

78 
206 

24 
203 
208 
203 


206 
208 

79 
205 
100 
226 


2t>5 
203 

5 


TABLE  OF  CASES  CITED, 


XXXI 


People  V.  French^  119  N.  Y.,  502 
•  V.  Goodwin^  22  Mich.,  496 

V.  Green,  58  N  Y.,  295 

V.  Hall,  80  N.  Y.,  117 

V.  Halsey,  37  N.  Y.,  344 

V.  Harlow,  29  111.,  43  . 

V.  Hartiuell,  12  Mich.,  508 

V.  ^»V/,  53  N.  Y.,  547 

V. ,  13  N.  Y.  Supplement,  186 ;  126  N.  Y.,  497 

V.  Hopson,  I  Denio,  N.  Y.,  574,  579 

V.  Hurlburty  24  Mich. ,  44  .         .         .         .    I.  22,  23 

V.  Hurst,  41  Mich.,  328 

V.  Keeler,  99  N.  Y.,  463 

V.  Kelduff,   15  111.,  492 

V.  Lawrence,  56  N.  Y.,  182 

V.  Learned,  5  Hun,  N.  Y.y  626 

V.  Leavitt,  41  Mich.,  470 

V.  Leonard,  73  Cal. ,  230 

V.  Mahaney,  13  Mich.,  481  . 

V.  Marble,  118  Mass.,  548   . 

V.  May,  3  Mich. ,  598  . 

V.  Mayor,  10  Wendell,  N.  Y.,  395 

V.  McCall,  65  How.  Pr.,  N.  Y.,  442 

V.  Murray,  70  N.  Y.,  521 

V.  Nevada.  6  Cal. ,  143 

V.  Norton,  7  Barbour,  N.  Y.,  477 

V.  Palmer,  52  N.  Y.,  84 

V.  Pease,  27  N.  Y.,  45,  34    • 

V.  Phillips,  67  N.  Y.,  582    . 

V.  Pinckney,  32  N.  Y.,  377 . 

V.  Piatt,  50  Hun,  N.  Y.,  454 

V.  Police  Commissioners,  1 14  N.  Y.,  245,  247 

V. ,  43  How.  Pr.,  N.  Y.,  385 

V.  Porter,  6  Cal.,  26     . 

V.  Stephens,  71  N.  Y.,  527 

V.  Stillwell,  19  N.  Y.,  531 

V.  Supervisors,  17  Hill,  N.  Y.,  195 

V.  Tieman,  30  Barb.,  N.  Y.,  193 

V.  Trustees,  54  Barb.,  N.  Y.,  480 

V.  Walter,  68  N.  Y.,  403     . 

V.  Weber,  89  111.,  347  . 

V.  Woodruff,  32  N.  Y.,  355 

Perry  \.  Shepherd,  78  N.  C,  83      . 
Pierce  V.  Boston,  3  Mete.  Mass.,  520 
Pike  V.  Megoun,  44  Mo. ,  491  . 
Plymouth  v.  Painter,  17  Conn.,  585 


VOL. 

PAGB 

.   II. 

206 

.   II. 

63 

11.96 

204 

.   II. 

63 

.   II. 

205 

.   II. 

72 

.   II. 

20 

.   II. 

203 

I.  82,  II 

208 

.   II. 

•26 

227,  II.  22.  27 

.   II. 

182 

.   II. 

270 

.   II. 

63 

.    I. 

82 

.   II. 

270 

.   II. 

204 

.   II. 

97 

I.  204,  II.  22 

.   II. 

72 

.   II. 

29 

.   II. 

204 

.   II. 

70 

.   II. 

23 

.    I. 

24 

.   II. 

79 

.   II. 

89 

II.  21, 

206 

.   II. 

204 

.    I. 

225 

I.  82,  II. 

208 

.   II. 

68 

.   II. 

202 

.   II. 

93 

.   II. 

156 

.   II. 

203 

.   II. 

287 

.  II.  26,  90 

.   II. 

205 

.   II. 

204 

.   II. 

26 

.   II. 

23 

.   II. 

210 

.    I. 

12 

.   II. 

169 

.   II. 

25 

XXXll 


TABLE  OF  CASES  CITED. 


Poindexier  v.  Green  how,  114  U.  S.,  270 

Privett  V.  Bickford^  26  Kan.,  52 

Queen  v.  Eastern  Counties  R'y  Co.,  10  Ad.  &  El 

V.  Hunger  ford,  1 1  Mod.  Rep. 

V.  Lords,  4  Ad.  &  El.,  286     . 

V. 4  Eng.  Rep. ,  277    . 

V. L.  R.,  7  Q.  B.,  387 

R.  R.  Commissioners,  In  re,  15  Neb.,  682 

Reed,  Ex  parte,  icx)  U.  S.,  13 

Rees  V.  City  of  Watertown,  19  Wall.,  107 

Rex  V.  Bower,  i  B.  &  C,  585 

V.  Chichester,  2  El.  &  El.,  209 

V.  Colbeck,  II  Ad.  &  El.,  161     . 

V.  Hanson,  4  B.  &  Aid.,  521      . 

V.  Hughes,  5  B.  &  C,  886 

V.  Kent,  J  J.,  41  J.  P.,  362       . 

V.  London,  8  How.  State  Trials,  1039 

V.  Middlesex  JJ.,  I  Chitty  Rep.,  366 

V.  Patterson,  4  B.  &  Ad.  ,9 

V.  R'y  Co.,  43  L.  J.  M.  C,  57  . 

V.   Water  Works,  i  N.  &  P.  48 

Riddle  V.  Bradford,  7  S.  &  R.,  Pa.,  386,  392 
Ripley  y.  Gifford,  ii  la.,  367   . 
Robinson's  Case,  131  Mass.,  376,  383 
Rodman  v.  Harcourt,  4  B.  Mon.  K'y,  224,  229 
Rogers  v.  Buffalo,  123  N.  Y.,  173    . 

V. 2  N.  Y.  Sup.,  326 

V.  Jacobs,  II  S.  W.  Rep.,  513 

Runkle  V.  United  States,  \ii  U.  S.,  543  . 
Russell  \.  The  Men  of  Devon,  2  T.  R.,  672 
Sampson  v.  Peaslee,  20  How.,  571    . 
Santa  Clara  Co.  v.  R.  R.  Co.,  18  Fed.  Rep.,  385 
Savacool  V .  Boughton,  5  Wendell,  N.  Y.,  170 
Scales  V.  The  Ordinary,  41  Ga.,  225 
Schooner  Orono,  The,  i  Gallison  C.  C,  137 
Schuchardt  v.  People,  99  111. ,  501     . 
Searcy  V.  Grow,  15  Cal.,  117   . 
Secordv.  Foutch,  44  Mich.,  89 
Sedwayy.  Commissioners,  120  111.,  496     . 
Sikes  V.  Hatfield,  13  Gray,  Mass.,  347      . 
Smith,  Ex  parte,  2  Cranch,  C.  C,  693     . 


V.  Moore,  90  Ind., 
V.  Moore,  90  Ind., 


Smythe  v.  Fiske,  23  Wall. , 
Stadler  v.  Detroit,  13  Mich. 
Starin  v.  Town  of  Genoa,  23  N.  Y. 


294 
294 
374 
346 


306 


441 


V 
531 


VOL. 

PAGB 

II. 

257 

II. 

29 

II. 

204 

II. 

201 

II. 

209 

II. 

209 

II. 

209 

I. 

131 

I. 

156, 

II.  5 

II. 

211 

II. 

24 

II. 

205 

II. 

215 

II. 

215 

II. 

96 

II. 

216 

I. 

197 

II. 

215 

II. 

96 

II. 

216 

II. 

203 

II. 

26 

II. 

72 

II. 

28 

II. 

26 

II. 

28 

II. 

35 

II. 

19 

I. 

72 

I. 

172 

I. 

28 

II. 

117 

II. 

166 

I. 

175 

I. 

74 

II. 

32 

II.  29,  97 

II. 

20 

II. 

68 

1. 174 

,  II. 

68 

II. 

4 

II. 

24 

II. 

29 

I. 

18 

II. 

100 

I. 

176 

TABLE  OF  CASES  CITED. 


StcUe  Bank  v.  Hastings,  54  Wis.,  78 
States.  Ashley,  1  KxV.^e^X'i     . 

V.  Barbour,  53  Conn.,  76 

V.  Biddle,  36  Ind.,  138    . 

V.  Brewer,  59  Ala.,  130 

V.  Buttz,  9  S.  C,  156      . 

Capens,  37  La.  Ann.,  747 

V;  Carroll,  38  Conn.,  449 

V.  Champ lin,  2  Bailey,  S.  C,  220 

V.  Chase,  5  Ohio  St.,  528 

V.  Clarke,  3  Nev.,  519     . 

V.  De  Gress,  53  Tex.,  387 

V.  Denny,  118  Ind,,  449 

V.  Douglas,  26  Wis.,  428 

V.  Ferguson,  31  N.  J.  L.,  107 

V.  Garesche,  65  Mo.,  480 

V.  Gloticesier,  44  N.  J.  L.,  137 

V.  Goss,  69  Me.,  22 

V.  Hauss,  43  Ind.,  105    . 

V.  Hoboken,  38  N.  J.  L.,  no 

V.  /.  S.  S.,  I  Tyler,  Vt.,  178 

V,  Kammer,  42  N.  J.  L.,  435 

V.  Kennon,  7  Ohio  St.,  560 

V.  Kreps,  8  Ala.  951 

V.  Lamberton,  37  Minn.,  362 

V.  Mar  low,  15  Ohio  St.,  144 

V.  Martin,  46  Conn.,  479 

V.  McKee,  i  Bailey,  S.  C,  651 

V.  McMillan,  23  Neb.,  385 

V.  Moody,  69  N.  C,  529 

State  V.  Moore,  90  Ind.,  294     . 

V.  Murray,  28  Wis.,  96  . 

V.  Newhouse,  29  La,  Ann.,  824 

V.  Saline  Co.,  18  Neb.,  428 

V.  Salle,  41  Mo.,  31 

V.  Smith,  14  Wis.,  497    . 

V.  Stanley.  66  N.  C,  59 

V.  Steele,  57  Tex.,  200     . 

V.  St.  Louis,  90  Mo.,  19 

V.  Trump f,  50  Wis.,  103 

State  of  Mississippi  v.  yohnson,  4  Wall. 
Statham  v.  State,  41  Ga.,  507 
Stephens  v.  People,  89  111.,  337 
Stewart  \.  Police  Jury,  116U.  S.,  135 
Still  \.  Brennan,  41  L.  J.  M.  C,  85 
Stockwell  V.  Township  Board,  22  Mich. 


475 


341 


XXXIU 

VOL. 

PAGE 

.     II. 

71 

.     II. 

210 

.    IL 

23 

.    IL 

210 

.    II. 

68 

.    II. 

96 

.    II. 

23 

.    IL 

25 

.    IL 

62 

.     IL 

208 

II.  29,  92 

U  94 

.    II. 

97 

I.  227,  I] 

.  22 

.    IL 

100 

.  II.  24,  93 

.     IL 

206 

.     II. 

20 

.     II. 

26 

.     II. 

94 

.    II. 

112 

.     II. 

184 

.     IL 

204 

I.  135.  I] 

.  22 

.    IL 

184 

.    IL 

204 

.    IL 

63 

.    IL 

204 

.    II. 

184 

.    IL 

29 

.     IL 

183 

.    IL 

29 

.  IL  28,  29 

.    II. 

96 

.      I. 

182 

.    IL 

4 

.    IL 

28 

.  11.  2. 

4.8 

.    II. 

70 

II.  87. 

206 

.  IL  28,  29 

I.  34.  11. 

208 

.     II. 

183 

.     II. 

19 

.     II. 

70 

.     IL 

215 

II.  87, 

206 

XXXIV 


TABLE  OF  CASES  CITED. 


563 


Stokes  V.  Kendall,  3  How.,  87 

Talbot  County  v.  Queen  Anne's  County,  50  Md, 

Tarble's  Case,  13  Wall.,  397     . 

Taylor  et  al,  v.  United  States,  3  How.,  197 

Thompson  y.  United  States,  103  U.  S.,  480 

Throop  V.  Langdon,  40  Mich.,  673  . 

Tobin  V.  Queen,  16  C.  B.  N.  S.,  310 

Town  of  Gallatin  v.  Loucks,  21  Barbour,  N,  "V 

Townsend V.  Mayor,  etc.,  77  N.  Y.,  542 

Tracy  v.  Swartout,  10  Peters,  80     . 

Trenton  Water  Power  Co.,  In  re,  Spencer,  N, 

Trimmer  v.  Bomar,  20  S.  C,  354    . 

Underwood  v.  Robinson,  106  Mass. ,  296  . 

United  States  v.  Avery,  Deady,  U.  S.,  204 

V.  B.  6-  O.  R.  R.  Co.,  17  Wall. 

V.  Barrels  of  Spirits,  2  Abbott'i 

V.  Barrows,  i  Abbott's,  U.  S.  ( 

V.  Bradley,  10  Peters,  343 

V.  Cakwalader,  Gilp.,  U.  S., 

V.  Cobb,  II  Fed.  Rep.,  66 

V.  De  Groot,  5  Wall.,  419  . 

V.  Eckford,  6  Wall.,  484   . 

■ V.  Eliason,  16  Peters,  291 

V.  Farden,  99  U.  S.,  lO     . 

V.  Ferreira,  13  How.,  40 

V.  Fisher,  109  U.  S.,  143  . 

V.  Germaine,  99  U.  S.,  508 

V.  Great  Falls  M^fg.  Co.,  112 

V.  Hartwell,  6  Wallace,  385 

V.  Hendee,  124  U.  S.,  309 

V.  Jones,  131  U.  S.,  I 

V.  Kendall,  5  Cranch,  C.  C.  U. 

V.  Langston,  118  U.  S.,  389 

V.  Martin,  17  Fed.  Rep.,  150 

V.  Maurice,  2  Brockenbrough, 

V.  Mc Daniel,  7  Peters,  i,  16 

V.  Mitchell,  109  U.  S.,  143 

V.  Mouat,  124  U.  S.,  303  . 

V.  Page,  137  U.  S.,  673     . 

V.  Palmer,  128  U.  S.,  262 

V.  Perkins,  116  U.  S.,  483 

V.  Peters,  3  Dallas,  121 

V.  Ringgold,  8  Peters,  150 

V.  Schurz,  102  U.  S.,  378 

V.  Seaman,  17  How.,  225 

V.  Shoemaker,  i  McLean,  U.  S 


245 


M  578 
J 


659 


322 

U 

c 


u.s 


s., 


u.s 


351 


645 


163 


96 


,  114 


VOL.  PAGE 

.  II.  165 

.     I.    175 

.   II.   213 

,    I.  18,  II.  107 

.    .  II.   94 

.    .  II.    3 

.    .  II.  155 

.    .   I.  174 

.    .11.  287 

.  I. 

151,  II.  161,  166 

.  II.  204 

.  II.   19 

.  II.  166 

.   I.   65 

.  I. 

43,  202,  206,  228 

05 

.   I.   18 

.  I.  28,  156 

.    .  II.  149 

.    .   I.  157 

.    .   I.  153 

.  II.  152 

.  II.  152 

.    .  1.28,73 

.    .   I.   73 

.    .   I.   24 

.    .  II.   70 

.    .  II.    4 

.    .  II.  157 

.    .  II.  2,  4.  5 

.    .  II.    5 

.    .  II.  157 

.    .   I.   67 

.  II.  70,  72,  285 

.    .  II.    3 

II.  26,  149 

,  I.  32,  II.  152 

.  II.   70 

.      .    n.      4 

.      .     I.     72 

.      .   n.    157 

.      .   II.     35 

.    II.   212 

.   II.    152 

II.  206,  209 

.    II.    205 

II.  181, 184 

TABLE  OF  CASES  CITED, 


XXXV 


United  States  v.  Smallwood^  i  Chicago  Legal  News,  321 

V.  Smithy  124  U.  S.,  525  . 

V.  Stowell,  2  Curtis  U.  S.  C.  C,  153 

V.  Tingey,  5  Peters,  115     . 

V.  Yale  Todd,  13  How.,  52* 

V.  Youngs  94  U.  S.,  258     . 

Vallandigham,  Ex  parte  ^  I  Wall.,  243    . 

Van  Orden,  Ex  parte ^  3  Blatchford,  U.  S.  C.  C,  167 

Van  Orsdelly.  Hazard,  3  Hill,  N.  Y.,  243     . 

Vaughn  v.  English,  8  Cal.,  39        .         .         . 

Viscount  Canterbury  v.  Attorney-General,  i  Fhillimore,  306 

Walls.  Trumbull,  16  Mich.,  228  . 

?rfl//rfl//v.  i?>  C^.,  48  L.  J.  M.  C,  65 

Walter  V.  B elding,  2^  \t.,tS^ 

Wardw.  County  of  Hartford,  12  Conn.,  406  . 

Wartmans.  City,  33  Pa.  St.,  202     . 

Watson  V.  Watson,  9  Conn.,  140     . 

Webber  v.  Gay,  24  Wendell,  N.  Y.,  485 

Wellington  et  al.  Petitioners,  16  Pickering,  Mass.,  87,  105 

White  V.  Levant,  78  Me.,  568  ... 

Wilckens  v.  Willet,  i  Keyes,  N.  Y.,  521 

Wilcox  V.  Jackson,  13  Peters,  498 

Williamson  v.  U.  S.,  1  How.,  290 ;  17  Peters,  144 

Wilmarth  v.  Burt,  7  Metcalf,  Mass.,  257 

Wilson  V.  Mayor,  i  Denio,  N.  Y.,  595    . 

Wolseyv.  Chapman,  loi  U.  S.,  755 

Worthy  v.  Barrett,  63  N.  C,  199,  20I  . 

Wright  V.  C/»j>^  ^/a/^j,  i  McLean,  U.  S.  C.  C,  509,  512 

Wyandotte  v.  Drennan,  46  Mich.,  478    .... 


VOL. 

PAGE 

II. 

211 

II. 

3 

IL  184 

,186 

II. 

149 

I. 

24 

II. 

211 

II. 

211 

II. 

211 

II.  93,  97 

II. 

4 

IL 

155 

IL 

166 

II. 

216 

IL 

63 

I. 

172 

I. 

213 

IL 

166 

II. 

166 

IL 

205 

II. 

68 

IL 

270 

1.73. 

156 

I. 

72 

IL 

166 

IL 

168 

I. 

73 

IL 

5 

IL 

93 

IL 

69 

V  i 


UNlVEFfSlTY 

OF 


BOOK  I. 
THE  SEPAEATION  OF  POWEKS. 


CHAPTER  I. 

ADMINISTRATION. 
/. — Administration  as  a  function  of  government. 

The  word  administration  is  used  in  several  senses. 
Thus  we  speak  of  tlie  administration  of  an  estate,  the 
administration  of  a  business,  and  of  the  administration 
of  government.^  In  the  following  pages  the  word 
administration  will  be  used  with  reference  to  govern- 
ment. But  even  when  used  with  reference  to  govern- 
ment, this  word  has  as  many  as  three  meanings.  In 
its  widest  sense,  it  is  used  to  indicate  the  entire  activity 
of  the  government ;  again  in  a  narrower  sense,  the  en- 
tire activity  of  the  government  with  the  exception  of 
that  of  the  legislature ;  in  a  third  and  narrowest  sense, 
the  activity  of  the  government  with  the  exception  of  vn^ 
the  activity  of  both  the  legislature  and  the  courts.^ 
Administration  in  this  narrowest  of  senses,  which  is 
the  proper  sense  for  it  as  indicative  of  a  function  of 
government,  is  the  activity  of  the  executive  officers  of 

'  Stengel,  Deutsches  Verwaltungsrecht,  i. 

"  Kirchenheim,  Einfiihrung  in  das  Verwaltungsrecht^  %. 


2  THE  SEPARATION  OF  POWERS. 

the  government.  Tlie  government  administers  wlien 
it  appoints  an  officer,  instructs  its  diplomatic  agents, 
assesses  and  collects  its  taxes,  drills  its  army,  investi- 
gates a  case  of  the  commission  of  crime,  and  executes 
tlie  judgment  of  a  court.  Whenever  we  see  the  gov- 
ernment in  action  as  opposed  to  deliberation  or  the 
rendering  of  a  judicial  decision,  there  we  say  is  ad- 
ministration. Administration  is  thus  to  be  found  in 
all  the  manifestations  of  executive  action.  The  direc- 
tions in  which  this  action  manifests  itself  depend 
upon  the  position  of  the  state  and  the  duties  of  the 
government. 

In  the  first  place,  the  state  occupies  a  position  among 
other  states ;  it  is  a  subject  of  international  law,  and 
as  sucli  has  rights  and  duties  over  against  other  states 
and  must  enter  into  relations  with  them.  The  man- 
agement of  these  relations  calls  for  certain  executive 
action.  This  action  constitutes  a  branch  of  the  gen- 
eral function  of  administration,  viz.^  the  Administra- 
tion of  Foreign  Relations. 

In  the  second  place,  the  state  must  have  means  at 
its  command  to  repel  any  attempts  which  may  be 
made  against  its  existence  or  power  by  other  states  or 
against  its  peace  and  order  by  its  own  inhabitants.  In 
other  words,  it  must  have  an  army  and  in  most  cases  a 
navy.  The  executive  action  made  necessary  by  the 
existence  of  a  military  force  constitutes  another  branch 
of  administration,  viz.^  the  Administration  of  Military 
Affairs. 

In  the  third  place,  every  government  must  do  some- 
thing to  decide  the  conflicts  which  arise  between  its 
inhabitants  relative  to  their  rights.  This  duty  makes 
the  existence  of  courts  necessary ;  and  they  in  turn  re- 


ADMINISTRATION.  3 

quire  executive  action,  which  forms  a  third  branch 
of  administration,  viz.^  the  Administration  of  Judicial 
Affairs.* 

In  the  fourth  place,  in  order  that  the  government 
may  perform  all  its  duties,  it  must  have  pecuniary 
means.  The  management  of  its  financial  resources 
forms  another  and  fourth  branch  of  administration,  viz.^ 
the  Financial  Administration  or  the  Administration 
of  Financial  Affairs.  The  theories  of  some  political 
philosophers  would  almost  confine  the  action  of  govern- 
ment to  these  branches  of  administration;  but  no 
government  was  ever  actually  so  confined  by  its  con- 
stitution ;  and  every  modern  state  has  recognized  that 
it  is  the  duty  of  the  government  to  further  directly 
the  welfare,  both  physical  and  intellectual,  of  its 
citizens.  This  it  does  by  the  formation  and  mainten- 
ance of  a  system  of  means  of  communication,  of  an 
educational  system,  of  a  system  of  public  charity,  etc. 
How  far  the  action  of  the  government  shall  extend  in 
this  direction  ;  what  it  shall  do  and  what  it  shall  leave 
to  the  private  enterprise  of  its  citizens ;  are  most  im- 
portant political  questions,  but  questions  which  must 
be  answered  by  political  and  social  science.^  The  duties 
performed  by  the  government  in  furthering  the  wel- 
fare of  its  citizens  may  be  classed  together  as  internal 

*  By  this  term  is  meant  not  the  decision  by  the  courts  themselves  of  the  con- 
troversies which  may  arise,  since  by  the  definition  of  the  term  administration 
which  has  been  adopted  this  branch  of  governmental  activity  has  been  excluded 
from  the  conception  of  administration  ;  but  the  activity  of  the  executive  organs 
of  the  government  to  the  end  that  the  courts  be  in  existence  and  in  a  position 
to  discharge  their  duties,  i,  e.  the  appointment,  discipline,  and  distribution  of 
the  judges  and  their  subordinate  officers.  This  is  a  side  of  what  is  ordinarily 
called  the  administration  of  justice,  which  in  most  countries  is  easily  distinguished 
from  the  rendering  of  judicial  decisions. 

*  Cf.  Burgess,  Political  Science  and  Comparative  Constitutional  Law,  I. ,  83. 


4  THE  SEPARATION  OF  POWERS. 

affairs;  and  the  executive  action  of  the  government 
necessitated  by  the  performance  of  these  duties  forms 
^/a  fifth  branch  of  administration,  viz,^  the  Adminis- 
tration of  Internal  Affairs. 

These  five  branches  of  administration  embrace  all 
the  functions  which  the  government  is  called  upon  to 
discharge  whatever  may  be  its  form  of  organization. 
In  the  fifth  branch — the  administration  of  internal 
affairs — we  find  the  greatest  difference  between  states 
in  the  functions  discharged  by  the  government — a  dif- 
ference which  is  dependent 'upon  the  political  philos- 
ophy which  obtains.^ 

Such,  then,  is  the  meaning  which  will  be  given  in 
the  following  pages  to  the  term  administration  con- 
sidered as  a  function  of  government.  It  is  the  entire 
activity  of  the  government,  exclusive  of  that  of  the 
legislature  and  the  purely  judicial  work  of  the  courts, 
in  the  fivefold  direction  of  foreign,  military,  judicial, 
financial,  and  internal  affairs. 

//. —  The  administration  as  an  organization. 

The  government  is,  however,  simply  an  ideal  concep- 
tion with  no  physical  existence.  In  order  that  it  may 
make  itself  felt  in  the  world  of  action  it  must  have 
agents  capable  of  physical  action  who  are  to  represent 
it.     These  agents  must  be  properly  organized  for  each 

*  Several  of  the  latest  continental  writers  on  administration  have  endeavored 
to  differentiate  another  branch  of  administration,  which  they  call  the  general 
administration  of  the  country.  See  Kirchenheim,  op.  cit.,  5  ;  Stengel,  Deut- 
sches  Verwaltungsrechty  5.  They  classify  under  this  branch  such  matters  as  the 
elections  and  the  relations  of  the  government  with  the  church.  This  attempted 
formation  of  a  sixth  branch  of  administration  is,  however,  contrary  to  general 
usage  and  seems  unnecessarily  to  complicate  the  subject,  as  all  matters  may, 
without  doing  them  great  violence,  be  classed  under  the  appropriate  one  of  the 
five  branches  distinguished. 


ADMINISTRATION,  5 

of  tbe  five  branches  of  administration  which  have  been 
distinguished  :  and  further  in  order  to  secure  unity  in 
their  action  in  these  various  directions  there  must  also 
be  organized  an  authority  at  the  head  of  this  adminis- 
trative personnel — an  executive  chief.  On  this  account 
the  study  of  administration  is  not  taken  up  exclusively 
with  a  consideration  of  the  rules  of  administrative 
action ;  but  a  large  part  of  the  time  devoted  to  this 
study  must  be  given  to  the  subject  of  administrative 
organization.  Indeed,  the  importance  of  the  adminis- 
ti'ative  organization  is  so  great  that  the  term  adminis- 
tration is  often  used  to  indicate  the  entire  administra- 
tive organization  extending  down  from  the  executive 
chief  to  the  most  humble  of  his  subordinates.  The 
word  administration  thus  means,  at  the  same  time  that 
it  indicates  a  function  of  government,  the  executive 
organization  of  the  state.  Administration  is  the  func- 
tion of  execution  ;  the  administration  is  the  totality  of 
the  executive  and  administrative  authorities. 


CHAPTER  II. 


ADMINISTRATIVE   LAW. 


/. — Definition. 


In  this  country  and  in  England,  where  no  serious 
attempt  has  been  made  to  classify  the  law  in  accordance 
with  the  relations  which  it  governs,  the  term  adminis- 
trative law  is  almost  meaningless.  While  we  speak 
with  perfect  propriety  of  administration  as  indicative 
of  a  function  of  government,  and  of  the  administration 
as  an  executive  organization,  there  is  hardly  an  Ameri- 
can or  English  lawyer  who  would  recognize  the  ex- 
istence of  a  branch  of  law  called  administrative  law. 
Indeed  as  eminent  a  writer  as  Professor  Dicey  claims  ^ 
that  "in  England  and  in  countries  which,  like  the 
United  States,  derive  their  civilization  from  English 
sources,  the  system  of  administrative  law  and  the  very 
principles  on  which  it  rests  are  unknown."  He  does 
not,  however,  mean  by  this  to  deny  the  existence  of  an 
administrative  law  in  the  true  continental  sense,  but 
simply  the  existence  of  his  conception  of  the  French 
droit  administratif^  a  conception  which  appears  to 
be  quite  unwarranted.  The  general  failure  in  Eng- 
land and  the  United  States  to  recognize  an  administra- 
tive law  is  really  due,  not  to  the  non-existence  in  these 

^  The  Law  of  the  Constitution,  3rd  Ed.,  304-306. 
6 


ADMINISTRA  TIVE  LA  W,  7 

countries  of  this  branch  of  the  law  but  rather  to  the 
well-known  failure  of  English  law  writers  to  classify 
the  law.  For  not  only  has  there  always  existed  in 
England,  as  well  as  in  this  country,  an  administrative 
law,  in  the  true  continental  sense  of  the  word,  but  this 
law  has  exercised  on  Anglo-Saxon  political  development 
an  influence  perhaps  greater  than  that  exerted  by  any 
other  part  of  the  English  law.  Of  late  years,  with  the 
great  awakening  on  the  continent  of  Europe  of 
interest  in  administrative  subjects,  the  term  admin- 
istrative law — in  reality  a  simple  translation  of  a 
French  expression — has  gradually  crept  into  our  legal 
vocabulary,  and  at  the  present  time  has  obtained 
recognition  from  some  of  the  most  advanced  legal 
thinkers.^  The  use  of  the  term  may  therefore  be 
regarded  as  perfectly  proper ;  though  that  use  must  be 
accompanied  by  an  explanation.  Adopting  the  system 
of  legal  classification  now  generally  admitted  to  be  the 
most  desirable,  viz.j  according  to  relations  governed,  we 
find  that  administrative  law  is  that  part  of  the  law 
which  governs  the  relations  of  the  executive  and  ad- 
ministrative authorities  of  the  government.  It  is  there- 
fore a'  part  of  the  public  law,  but  it  is  only  a  part.  All 
such  rules  of  law  as  concern  the  function  of  administra- 
tion, and  only  such  rules  of  law,  belong  to  administrative 
law.  Further,  since  the  function  of  administration 
depends  for  its  discharge  upon  the  existence  of  admin- 
istrative authorities,  whose  totality  is  called  the  ad- 
ministration, adminstrative  law  is  concerned  not  alone 
with  the  relations  of  the  administrative  authorities  but 

'  E.  g.  see  Holland,  Elements  of  Jurisprudence,  4th  Edition,  1888,  122,  303, 
308-311  ;  Lightwood,  The  Nature  of  Positive  Law^  ^o^  \  The  yuridical Review , 
II.,  No.  5,  13  ;  Stimson,  American  Statute  Law^  v. 


X 


8  THE  SEPARATION  OF  POWERS. 

also  with  their  organization.  Administrative  law  at 
the  same  time  fixes  the  offices  which  shall  form  part  of 
the  administration  and  determines  the  relations  into 
which  the  holders  of  these  offices  shall  enter. 

In  so  far  as  it  fixes  the  organization  of  the  adminis- 
trative authorities,  administrative  law  is  the  necessary 
supplement  to  constitutional  law.  While  constitutional 
law  gives  the  general  plan  of  governmental  organization, 
administrative  law  carries  out  this  plan  in  its  minutest 
details.  But  administrative  law  not  only  supplements 
constitutional  law,  in  so  far  as  it  regulates  the  adminis- 
trative organization  of  the  government ;  it  also  comple- 
ments constitutional  law,  in  so  far  as  it  determines  the 
rules  of  law  relative  to  the  activity  of  the  administrative 
authorities.  -  For  while  constitutional  law  treats  the 
relations  of  the  government  with  the  individual  from 
the  standpoint  of  the  rights  of  the  individual,  adminis- 
trative law  treats  them  from  the  standpoint  of  the 
powers  of  the  government.  Constitutional  law,  it  has 
been  said,  lays  stress  upon  rights;  administrative 
law  emphasizes  duties.^  But  while  administrative  law 
emphasizes  the  powers  of  the  government  and  the  duties 
of  the  citizen,  it  is  nevertheless  to  the  administrative 
law  that  the  individual  must  have  recourse  when  his 
rights  are  violated.  For  Just  so  far  as  administrative 
law  delimits  the  sphere  of  action  of  the  administration 
it  indicates  what  are  the  rights  of  the  individual  which 
the  administration  must  respect ;  and,  in  order  to  prevent 
the  administration  from  violating  them,  offers  to  the 
individual  remedies  for  the  violation  of  these  rights. 

Administrative  law  is  therefore  that  part  of  the 
public  law  which  fixes  the  organization  and  determines 

^  Boeuf,  Droit  Adminisiratif,  iv. 


ADMINISTRA  TIVE  LA  W,  9 

the  competence  of  the  administrative  authorities,  and 
indicates  to  the  individual  remedies  for  the  violation 
of  his  rights. 

//. — Necessity  for  separate  treatment. 

It  may  be  asked  why  is  it  necessary  to  separate 
administrative  law  from  the  body  of  the  law  ?  Do  the 
rules  of  law  governing  the  relations  of  the  administration 
differ  so  much  from  the  rules  governing  the  relations 
of  individuals  as  to  necessitate  in  a  logical  classification 
of  the  law  the  assignment  of  a  special  domain  to  ad- 
ministrative law  ?  The  question  is  susceptible  of  easy 
answer  so  far  as  the  first  great  class  of  the  rules  of 
administrative  law  are  concerned.  The  rules  of  law 
governing  the  organization  of  the  administration  must 
be  quite  different  from  the  rules  of  law  governing  the 
relations  of  individuals,  since  the  whole  purpose  of 
such  rules  is  the  public  rather  than  the  individual 
welfare.  When  we  come  to  the  second  great  class  of 
rules  it  may,  however,  well  be  asked,  are  there  or  must 
there  be  rules  of  law  for  the  regulation  of  the  action 
of  the  administration  different  from  those  which  regu- 
late the  action  of  individuals?  The  government  in 
many  cases  acts  in  much  the  same  way  as  an  ordinary 
individual ;  and  in  these  cases,  it  may  be  urged,  might 
be  subjected  to  the  same  rules  of  law  which  affect 
private  individuals.  Thus  the  government  may  carry 
on  railroad  enterprises,  may  offer  means  of  communi- 
cation by  carrying  the  mails,  may  own  large  landed 
properties.  In  all  of  these  cases  the  government  has 
many  of  the  characteristics  of  a  private  person,  and  it 
might  be  concluded  from  this  fact,  that  the  ordinary 
rules  of  private  law  might  be  applied  to  it,  that  no 


lo  THE  SEPARATION  OF  POWERS. 

special  rules  of  law  were  necessary.  Nevertheless, 
for  the  regulation  of  even  these  matters,  special  rules 
of  law  are  enacted  because  the  government  cannot 
wisely  or  conveniently  be  treated  as  a  private  person. 
When  it  carries  a  letter  the  government  cannot  be  re- 
garded as  an  ordinary  carrier  of  merchandise,  because 
in  transacting  this  business  its  object  is  not  usually  the 
acquisition  of  gain  but  the  furtherance  of  the  welfare  of 
the  community.  This  is  the  great  distinction  between 
public  and  private  business.*  Therefore  the  government 
enacts,  for  the  regulation  of  the  relations  into  which  it 
enters  with  those  persons  who  entrust  letters  to  it, 
rules  of  law  which  differ  from  the  ordinary  rules  of 
law  regulating  the  relations  of  carriers,  in  that  they 
are  more  favorable  to  the  government.  We  find  a 
special  set  of  laws  which  we  call  postal  laws.  These 
form  part  of  the  administrative  law,  since  they  govern 
the  action  of  the  officers  of  the  administration  in  the 
performance  of  this  particular  duty  of  the  government. 
In  other,  and  indeed  in  most,  cases,  however,  the  gov- 
ernment has  few  if  any  of  the  characteristics  of  a  pri- 
vate person.  It  represents  the  sovereign  power  of  the 
land.  Through  its  administrative  authorities  it  de- 
mands of  the  persons  in  its  obedience  the  sacrifice  of 
their  property  and  curtails  their  freedom  of  action. 
It  orders  the  tearing  down  of  a  house  and  the  pay- 
ment of  taxes ;  it  requires  those  who  have  charge  of 
persons  suffering  from  a  contagious  disease  to  notify 
the  administration  and  enforces  a  quarantine  against 
the  diseased  persons  themselves.  That  the  adminis- 
tration must  do  all  of  these  things  is  now  everywhere 
recognized  ;  but  nowhere  is  it  recognized  that  it  may 

'  Cf.  Kirchenheim,  op.  cit.y  21  ;  Adams,   Public  Debts,  369. 


ADMINISTRA TIVE  LAW,  il 

act  in  tlie  doing  of  these  things  in  accordance  with  its 
own  unlimited  discretion/  The  grant  to  the  adminis- 
tration of  such  enormous  discretionary  powers  as  would 
be  necessary,  would  prove,  indeed  has  in  the  past 
proved,  dangerous  in  the  extreme  to  the  maintenance 
of  individual  liberty.  There  has  therefore  been  a  con- 
tinuous attempt  on  the  part  of  the  people  to  control 
the  discretion  of  the  administration  in  the  exercise  of 
the  sovereign  powers  of  the  state.  This  attempt  has 
resulted  in  the  formation  of  a  new  body  of  law  which 
determines  and  delimits  administrative  action  and  dis- 
cretion ;  and  this  body  of  law  is  made  as  a  general 
thing  by  the  legislature,  the  representative  of  the 
people  and  the  supposed  protector  of  individual  rights.^ 
The  administration  is  thus  brought  within  the  law, 
but  it  still  does  not  lose  its  position  as  the  representa- 
tive of  the  sovereign  power.  Therefore,  in  spite  of  the 
great  development  of  popular  institutions,  at  the  pres- 
ent time  the  action  of  the  administration  in  the  most 
democratic  states  is  easily  distinguished  in  kind  from 
that  of  private  persons. 

The  result  of  the  position  of  the  administration  as 
the  representative  of  the  sovereign  is  that  the  law 
which  governs  the  relations  into  which  it  enters  as  such 
representative  is  quite  different  in  many  respects  from 
the  private  law.  In  this  law  contract  and  tort  play  a 
very  subordinate  role.  While  contract  and  tort  lie  at 
the  basis  of  a  large  part  of  the  private  law,  in  public 
law  and  therefore  in  administrative  law  there  is  hard- 
ly any  room  for  them,  no  room  for  them  at  all  it  may 
be  said,  except  where  the  government  is  treated  as  ^- 

*  Kirchenheim,  op.  cit.,  21. 

'  Cf.  Sarwcy,  Allgemeines  Verwaltungsrecht^  37. 


12  THE  SEPARATION  OF  POWERS. 

cus,  i.  e,  as  a  subject  of  private  law.  For  the  relations 
into  which  the  administration  enters  are  not  as  a  rule 
contractual  relations,  but  find  their  sources  and  their 
limitations  rather  in  obligations  or  powers  conferred  by 
the  sovereign  power  through  its  representative  the  leg- 
islature ;  nor  are  the  injuries  which  the  administration 
as  administration  commits  often  torts,  but  are  rather 
to  be  classed  as  damna  absque  injuria.  Thus  the  re- 
lations of  the  administration  with  the  individual  result- 
ing from  the  exercise  of  the  taxing  power  are  almost 
never  contractual  relations;  taxes  are  not  debts  but 
obligations  imposed  on  the  individual  by  the  public 
law,^  and  are  not  governed  by  the  principles  of  the 
private  law.  Thus  also  the  relations  into  which  the 
administration  enters  with  its  officers  are  not  gov- 
erned by  the  private-law  rules  affecting  the  relation 
of  master  and  servant.  For  the  official  relation  is 
not  a  contractual  relation  but  again  a  relation  formed 
by  the  operation  of  public  law.^  Still  again,  while  the 
relations  of  the  government  with  private  corporations 
are  by  the  laws  of  the  United  States  in  many  cases 
governed  by  contract  principles,  i,  e,  the  clause  of  the 
United  States  constitution  preventing  a  commonwealth 
from  passing  a  law  impairing  the  obligation  of  a  con- 
tract (which  is  supposed  to  be  found  in  its  charter), 
the  relations  of  the  government  with  public  corpora- 
tions are  governed  rather  by  the  rules  of  public  law 
and  are  not  much  affected  by  the  contract  idea.^ 

In  some  of  the  cases  decided  by  the  courts  of  this 
country  the  necessity  of  the  separate  study  and  treat- 

'  See  Merriwether  v.  Garrett,  102  U.  S. ,  472  ;  and  Pierce  v.  Boston,  3  Mete. 
Mass.,  520  ;  cf.  Cooley,  Taxation  2d.  Ed.  17,  18. 
'  Butler  V.  Penna.,  18  How.  U.  S.,  402  ;  infra,  II.,  p.  3. 
'  See  Dartmouth  College  v.  Woodward,  4  Wheaton,  636. 


ADMINISTRATIVE  LAW. 


IS 


ment  of  the  administrative  law  as  a  part  of  the  public 
law  is  made  particularly  apparent.  For  the  result  of  I 
entrusting  the  development  of  the  principles  of  the! 
public  law  to  judges  engaged  for  the  most  part  in  the 
study  and  application  of  the  principles  of  the  private 
law,  and  of  the  resulting  failure  on  the  part  of  such 
judges  to  distinguish  public  from  private  relations,  hasi 
been  the  application  to  public  relations  of  the  princi-l 
pies  of  the  private  law.  This  is  most  unfortunate. 
For  in  some  cases  the  result  of  the  too  great  insistence 
on  the  idea  of  contract  in  these  public  relations  has 
been  to  revive  in  our  public  law,  principles  which  are 
characteristic  rather  of  feudal  than  of  democratic 
states.  Thus  the  decision  that  a  commonwealth  which 
has  relinquished  its  taxing  power  may  forever  be  pre- 
cluded from  reassuming  it  because  in  so  doing  it  im- 
pairs the  obligation  of  a  contract,  results  in  the  forma- 
tion of  a  class  of  persons  possessed  of  privileges  of  a 
public  and  not  private  character,  and  privileges  which 
may  never  be  taken  from  them.  This  was  exactly  the 
feudal  idea.*  Again  the  decision  that  a  commonwealth, 
for  the  same  reason,  may  not  amend  the  charter  of  a 
private  corporation  is  another  instance  of  the  same  ten- 
dency. That  the  public  policy  of  such  a  decision  is 
bad  may  be  seen  from  the  insertion  in  the  constitutions 
of  most  all  the  commonwealths  of  a  provision  which 
expressly  allows  charters  to  be  amended  in  the  case  of 
corporations  chartered  after  the  putting  in  force  of 
the  constitution.  Further  the  great  expansion  of  the 
police  power  by  the  decisions  of  the  United  States  Su- 
preme Court  is  an  evidence  also  of  the  growing  feeling 

*  See  New  Jersey  v.  Wilson,  7  Cranch,  164  ;  Cooley,  Taxation^  67  ;  Burgess, 
Folitical  Sciencey  etc.,  I.,  238. 


14  THE  SEPARATION  OF  POWERS. 

that  the  idea  of  contract  has  been  applied  unjustifiably 
in  the  relations  of  the  public  law.*  The  position  of 
the  administration  thus,  both  when  it  acts  as  the 
man  of  business,  of  society,  and  when  it  represents  the 
sovereign,  is  so  peculiar  that  its  legal  relations  must  be 
set  aside  for  separate  treatment  in  any  system  of  legal 
classification  which  has  regard  for  actual  conditions. 

///. — Distinction  of  administrative  law  from  private  law. 

While  administrative  law  has  a  sufficiently  distinc- 
tive character  to  justify  its  assignment  to  a  separate 
position  in  a  scheme  of  legal  classification,  there  are 
many  cases  in  which  it  is  extremely  difficult  to  distin- 
guish it  from  other  branches  of  the  law,  many  cases 
also  where  practical  considerations  have  such  weight 
as  to  overbalance  any  desire  for  logical  exactness.  This 
is  especially  true  of  some  of  the  points  where  the  do- 
main of  administrative  law  seems  to  touch  upon  that 
of  private  law. 

We  find  many  rules  of  law  which,  if  we  abide  by 
the  definition  that  has  been  given  of  administrative 
law,  viz.^  as  that  portion  of  the  law  which  governs  the 
relations  of  the  administration,  must  be  regarded  as 
falling  within  its  borders,  but  which  at  the  same  time 
have  been  enacted  mainly  with  the  idea  of  founding 
or  strengthening  purely  private  rights.  Such  for  ex- 
ample are  the  rules  of  law  governing  the  registration 
of  legal  instruments  and  the  issue  of  patents.  Such 
rules  of  law  either  alter  the  force  of  an  existing  right 
over  against  third   persons  or  actually  found  a  new 

*  For  the  distinction  between  private  and  public  law,  see  Benson  v.  Mayor, 
lo  Barbour,  N.  Y.,  223,  245. 


ADMINISTRA  TIVE  LA  W.  15 

private  legal  right  and  are  thus  private  in  character. 
On  account  of  their  character  the  usual  practice  is, 
notwithstanding  the  fact  that  they  at  the  same  time 
govern  the  relations  of  the  administration,  to  regard 
them  as  a  part  of  the  private  law.  That  is,  all  rules 
of  law  whose  immediate  purpose  is  the  promotion  of 
the  rights  of  individuals  are  parts  of  the  private  law 
whether  they  govern  at  the  same  time  the  relations  of 
the  administration  or  not.*  This  was  the  rule  of  the 
Roman  law.  Ulpian  says :  "  Puhlicum  jus  est  quod 
ad  statum  rei  RomancB  spectat^  privatum  quod  ad 
sirigulorum  utilitatem.^^  ^ 

IV. — Distinction  from  other  branches  of  public  law. 

The  endeavor  must  also  be  made  to  distinguish  ad- 
ministrative law  from  the  other  branches  of  public 
law.  The  distinction  between  administrative  and  con- 
stitutional law  has  already  been  indicated.  While 
constitutional  law  defines  the  general  plan  of  state 
organization  and  action,  administrative  law  carries  out 
this  plan  in  its  minutest  details,  supplements,  and  com- 
plements it.^  The  distinction  between  the  two  is  thus 
one  more  of  degree  than  of  kind.  Both  treat  to  a 
large  extent  of  the  same  subjects,  the  latter  more  in 
detail  than  the  former,  while  the  latter  devotes  itself 
almost  entirely  to  the  consideration  of  the  executive 
organs  of  the  government,  since  they  are  the  only  ones 
which  actually  act  and  administer.  The  distinction 
between  administrative  and  international  law  also  is 
quite  clear.     While  administrative  law  lays  down  the 

*  Cf.  Kirchenheim,  op,  cit.^  22. 

*  Insts.,  I.,  sec.  4. 

*  See  supra,  p.  8. 


I6  THE  SEPARATION  OF  POWERS. 

rules  which  shall  guide  the  officers  of  the  administra- 
tion in  their  action  as  agents  of  the  government,  in- 
ternational law  consists  of  that  body  of  usage  which 
it  is  supposed  that  a  state  will  follow  in  its  relations 
with  other  states.  While  it  is  the  guide  of  conduct  of 
a  state  in  its  relations  with  other  states,  while  its 
observance  will  conduce  to  peace  and  its  non-observ- 
ance may  lead  to  trouble,  it  still  cannot  be  regarded  as 

'  binding  upon  the  officers  of  any  government  considered 
in  their  relation  to  their  ovni  government  except  in  so 
far  as  it  has  been  adopted  into  the  administrative  law 
of  the  state.  On  this  account  the  German  jurist  Zom 
treats  international  law  as  external  public  law.* 

The  usual  method  of  legal  classification  assigns  to 
the  criminal  law  a  place  in  the  public  law.  If  this 
method  is  correct  it  becomes  necessary  to  distinguish 
the  administrative  law  from  the  criminal  law.  Any  at- 
tempt to  make  such  a  distinction,  as  indeed  to  distin- 
guish the  criminal  law  from  any  of  the  clearly  defined 
branches  of  the  law,  will  be  found,  however,  to  present 
almost  insurmountable  difficulties.  The  conclusion  is 
irresistible  that  from  the  scientific  point  of  view  the 
criminal  law  does  not  occupy  any  well  defined  position 
in  the  legal  system  separated  in  kind  from  the  distinct 
branches  of  the  law.     It  consists  really  of  a  body  of 

•  penal  sanctions  which  are  applied  to  all  the  branches 
of  the  law.^  A  great  many  of  the  rules  of  all  the 
branches  of  the  law  are  found  to  require  such  sanctions 
in  order  to  ensure  their  observance.  Thus  certain  rules 
of  law  governing  the  relations  of  individuals  one  with 

"^  Das  JReichsstaatsrecht,    II.,   419;    cf.    Gumplowicz,   Das    Oesterreichische 
Staatsrecht,  348. 
*  Cf.  Boeuf,  op.  cit.,  iv,  ;  Lightwood,  The  Nature  of  Positive  Law,  396-402. 


AbMINISTRA  TIVE  LA  W.  1 7 

another  are  found  to  be  practicably  unenforceable 
under  any  system  of  private  actions.  The  government, 
therefore,  steps  in  and  gives  them  a  penal  sanction. 
The  necessities  are  the  same  in  other  branches  of  the 
law.  Penal  sanctions  often  become  necessary.  The 
rules  of  law  imposing  these  sanctions  come  to  form  a 
system  of  law,  to  which  the  name  of  criminal  or  penal 
law  is  attached.  This  law  sanctions  and  protects  all 
branches  of  the  law  without  itself  forming  a  distinct 
branch  of  the  law.  But  while  this  law  of  penal  sanc- 
tion may  not  thus  properly  be  regarded  as  a  distinct 
portion  of  the  law  in  the  same  way  that  the  adminis- 
trative law  is  a  distinct  portion  of  it,  still  the  appli- 
cation of  sufficiently  rigorous  penalties  to  enforce 
obedience  to  the  law  and  the  preservation  at  the  same 
time  of  the  rights  of  the  individual  present  problems 
of  such  importance  as  to  demand  for  their  solution 
separate  methods  of  thought  and  treatment,  and  to 
have  brought  it  about  that  the  law  which  imposes 
penal  sanctions  is  regarded,  and  properly  regarded,  as 
forming  a  separate  part  of  legal  study.  A  science 
of  penalties,  viz.^  penology,  has  also  been  developed,  in 
accordance  with  whose  theories  the  criminal  law  is 
moulded.  It  is  thus  seen  that  the  rules  of  law  which 
have  been  protected  by  a  penal  sanction  may  be  really 
administrative  in  character.  If  they  are  of  this  char- 
acter the  student  of  administrative  law  may  not, 
simply  because  they  are  thus  protected,  dismiss 
them  from  his  consideration  on  the  ground  that  they 
are  a  part  of  the  criminal  law.  For,  indeed,  ^, 
one  of  the  most  common  and  efficient  means  of  • 
enforcing  a  rule  of  administrative  law  is  to  give  it  a  \ 
penal  sanction,  and  the  mere  affixing  of  a  penalty  to 


i8  THE  SEPARATION  OF  POWERS, 

the  violation  of  a  rule  of  administrative  law  does  not 
deprive  such  rule  of  law  of  its  administrative  charac- 
ter/ Nor  does  the  mere  imposition  of  a  penalty  of 
necessity  make  the  rule  of  law  to  the  violation  of  which 
the  penalty  is  imposed  a  rule  of  criminal  law  in  the 
sense  that  it  must  be  strictly  construed.^  This  comes 
out  particularly  clearly  in  the  distinction  which  is  so 
often  made  between  crimes  and  police  offences.^ 

'  See  Infra,  II.,  p,  io6. 

•See  Taylor  et  al.  v.  U.  S.,  3  How.,  197,  210,  where  Judge  Story  says: 
•'The  judge  was  therefore  strictly  accurate  when  he  said  [in  his  charge]  'it 
must  not  be  understood  that  every  law  which  imposes  a  penalty  is  therefore, 
legally  speaking,  a  penal  law,  that  is  a  law  which  is  to  be  construed  with  great 
strictness  in  favor  of  the  defendant.  Laws  enacted  for  the  prevention  of  fraud, 
for  the  suppression  of  public  wrong  or  to  effect  a  public  good,  are  not,  in  the 
strict  sense,  penal  acts  although  they  may  inflict  a  penalty.'  It  is  in  this  light 
I  view  revenue  laws,  and  I  would  construe  them  so  as  most  effectually  to  ac- 
complish the  intention  of  the  Legislature  in  passing  them."  See  also  Cliquot's 
Champagne,  3  Wall.,  114,  145  ;  Smythe  v.  Fiske,  23  Wall.,  374. 

^See  Wharton,  Crimhial  Law,  9th  Ed.,  I.,  sees.  23a  and  28  ;  also  Oshkosh  v^ 
Schwartz,  55  Wise,  483  ;  Commonwealth  v.  Willard,  22  Pickering,  476  ;  U.  S. 
V.  Barrels  of  Spirits,  2  AbbottTs  U.  S.,  305,  314  ;  Gooley,  Taxation,  2d  Ed.,  270, 


CHAPTER  III. 

THE   THEORY   OF   THE   SEPARATION   OF   POWERS. 

It  has  been  shown  that  administration  is  to  be  found 
in  the  activity  of  the  government  exclusive  of  that  of 
the  legislature  and  that  of  the  courts,  i,  e,  in  the  activ- 
ity of  the  executive  organs  of  the  government.  The 
differentiation  of  three  somewhat  separate  governmental 
authorities  was  the  result  of  the  political  history  and 
experience  of  Europe  and  especially  of  England.  His- 
torically it  may  be  shown  that  all  governmental  power 
was  at  one  time  expressed  in  all  cases  in  final  instance 
by  a  single  organ,  viz.,  the  early  mediaeval  monarch. 
Experience  proved,  however,  that  certain  expressions 
of  it  should  be  made  by  the  state,  i,  e.  by  the  constitu- 
tion-making power,  and  not  by  the  government  at  all. 
This  resulted  in  the  distinction  of  the  state  from  the 
government.  Experience  also  showed  that  in  the  case 
where  this  governmental  power  should  be  expressed  by 
the  government  it  is  a  deliberative  body  largely  inde- 
pendent of  any  other  governmental  organ  which  should 
act  in  a  series  of  instances ;  that  in  another  series  it  is 
an  executing  organ,  largely  separate  from  and  inde- 
pendent of  all  other  governmental  authorities  which 
should  act ;  and  that  finally  in  another  series  of  cases 
duties  should  be  imposed  upon  a  third  series  of  au- 
thorities forming  the  judiciary.    These  three  authorities 

19 


20  THE  SEPARATION  OF  POWERS. 

were  called  respectively  the  legislature,  the  executive, 
and  the  judicial  authority.  This  differentiation  of  govern- 
mental authorities  was  first  noticed  in  modern  times  by 
Locke  and  Montesquieu,  the  latter  of  whom  based  upon 
this  fact  his  famous  theory  of  the  separation  or  distribu- 
tion of  powers.  In  his  great  work  on  the  Esprit  dea 
Lois,  he  first  distinguished  three  great  powers  of  govern- 
ment, viz.y  the  legislative,  the  executive,  and  the  judicial, 
and  then  insisted  on  the  importance  of  entrusting  each 
of  the  powers  to  a  separate  authority  distinct  from  and 
independent  of  the  others.*  This  theory  was  very  gen- 
erally adopted  by  the  political  science  of  the  time  im- 
mediately succeeding  Montesquieu,  and,  in  a  somewhat 
more  extreme  form  than  was  probably  believed  in  by 
Montesquieu  himself,  came  to  be  regarded  as  almost  a 
political  axiom,  which  should  lie  at  the  basis  of  the 
political  organization  of  all  civilized  states.^ 

Modern  political  science  has,  however,  generally  dis- 
carded this  theory  ^  both  because  it  is  incapable  of  ac- 
curate statement,  and  because  it  seems  to  be  impossible 
to  apply  it  with  beneficial  results  in  the  formation  of 
any  concrete  political  organization.  While  it  is  true, 
says  a  judge  of  the  supreme  court  of  North  Carolina  * 
that  "the  executive,  legislative,  and  supreme  judicial 
powers  of  the  government  ought  to  be  forever  separate 
and  distinct,  it  is  also  true  that  the  science  of  govern- 
ment is  a  practical  one ;  therefore,  while  each  should  firm- 
ly maintain  the  essential  powers  belonging  to  it,  it  cannot 

*  Esprit  des  Lois,  book  xi.,  chap.  vi. 

'  For  example,  the  Constituent  Assembly  of  France  laid  it  down  in  1789  as  a 
rule  that  a  country  in  which  the  separation  of  powers  is  not  determined,  does  not 
have  a  constitution.     Declaration  des  droits  de  Vhomme  et  du  ciioyen,  art.  16. 

^  Kirchenheim,  op.  cit.,  I. 

*  Brown  v.  Turner,  70  N.  C,  93,  102. 


THEORY  OF  THE  SEPARATION  OF  POWERS.     21 

be  forgotten  that  the  three  co-ordinate  parts  constitute  t 
one  brotherhood  whose  common  trust  requires  a  mu-  ) 
tual  toleration  of  the  occupancy  of  what  seems  to  be 
a  *  common  because  of  vicinage '  bordering  on  the  do- 
mains of  each."  ^  The  flaw  in  Montesquieu's  reasoning, 
and  in  that  of  his  followers,  was  the  assumption  that 
the  expressions  of  the  governmental  power  by  different 
authorities  were  different  powers.  Seeing  that  the 
most  important  function  of  the  English  Parliament 
was  the  making  of  laws,  they  assumed  that  the  sole 
duty  of  the  Parliament  was  the  making  of  laws,  and 
that  it  alone  possessed  that  power.  This,  indeed,  as 
every  one  knows,  was  not  the  fact,  but  even  had  it  been 
the  fact,  all  that  could  be  logically  deduced  from  it 
was  that  the  power  of  the  English  legislature  consisted 
in  the  making  of  laws,  and  that  this  was  the  function 
of  the  Parliament  alone.  But  they  went  a  step  farther, 
and,  basing  their  generalization  upon  an  insufficient 
induction,  concluded  that  what  was  true  of  England,  or 
rather  what  they  supposed  was  true  of  England,  was 
true  everywhere  or  should  be  true  everywhere.  They 
stated  as  a  truth  of  political  science  what  was  simply  a 
local  phenomenon.  For  just  as  English  experience  was 
at  the  basis  of  the  differentiation  of  powers  which 
Montesquieu  supposed  he  had  discovered  and  which 
undoubtedly  existed  in  a  general  way  in  England,  so 
continental  experience  is  at  the  basis  of  a  somewhat  dif- 
ferent differentiation  of  powers.  In  no  two  countries 
do  we  find  exactly  the  same  sphere  of  action  assigned  to 
any  one  of  the  governmental  authorities  which  may 
be  differentiated.  In  some,  for  example,  the  executive 
authority  possesses  a  large  power  of  control  over  legis- 

*  Cf.  Sarwey,  op.  cit.,  26. 


22  THE  SEP  AHA  TION  OF  PO  WERS. 

lation  and  over  tlie  policy  of  the  government,  in  others 
almost  none ;  in  some  the  legislative  authority  has  a 
large  power  over  the  formation  of  the  executive  au- 
thority, in  others  almost  none.^  What  ought  in  theory 
to  be  the  sphere  of  action  of  each  of  the  different  gov- 
ernment authorities  and  what  ought  to  be  the  sphere 
of  action  of  the  state,  L  e.  the  constitution-making  au- 
thority, are  matters  which  must  very  largely  be  governed 
by  the  history  and  political  needs  of  the  particular  coun- 
try, and  any  attempt  to  impose  on  a  country  any  hard 
and  fast  rule  derived  either  from  a  priori  reasoning  or 
from  any  inductive  generalization,  based  upon  the  ex- 
perience of  other  countries,  is  rather  more  apt  to  meet 
with  failure  than  success. 

But  while  Montesquieu's  theory  is  therefore  lacking 
in  both  scientific  and  practical  foundation,  still  it  must 
be  confessed  that  he  stated  a  principle  which  has  had 
an  immense  effect  upon  the  political  systems  which 
have  been  elaborated  since  his  day.  His  theory  still 
lies  at  the  basis  of  most  political  organizations  at  the 
present  time.  It  is,  however,  subject  to  many  excep- 
tions which  exceptions  are  not  the  same  in  different 
states.  This  theory  may  be  stated  as  follows.  The 
action  of  the  legislature,  which  is  commonly  called  the 
legislative  power,  but  which  is  in  reality  merely  an 
expression  of  the  governmental  power  by  the  legisla- 
ture, consists  for  the  most  part  in  the  enactment  of 
general  norms  of  conduct  for  all  persons  and  authorities 
within  the  state ;  the  action  of  the  executive  authority, 
commonly  called  the  executive  power,  is  the  applica- 
tion of  these  norms  to  concrete  cases ;  and  finallv  the 
action  of  the  judges  or  the  courts,  commonly  called 

'  Cf.  Judge  Christiancy's  remarks  in  People  v.  Hurlburt,  24  Mich.,  44,  63. 


THEORY  OF  THE  SEPARATION  OF  POWERS.     23 

the  judicial  power,  is  the  settlement  of  controversies 
arising  between  individuals  or  between  individuals  and 
the  governmental  authorities  as  to  the  application  of 
the  laws.  It  may  further  be  added  that  experience 
has  shown  that  in  general  it  is  best  that  these  different 
authorities  be  confined  to  the  exercise  of  the  powers 
respectively  assigned  to  them  by  this  theory.  There 
must,  however,  be  important  exceptions  to  any  such 
rule  ;  and  these  exceptions  are  not  the  same  in  the 
different  states,  nor  should  they  be  the  same,  since  the 
political  experience  and  needs  of  no  two  states  are  the 
same.  So  long  as  the  discussion  as  to  the  theory  of 
the  separation  of  powers  is  carried  on  from  the  stand- 
point of  merely  what  ought  to  be,  little  difficulty  arises, 
but  if  once  the  scientific  theory  is  formulated  as  a  legal 
rule,  if  once  it  is  adopted  in  the  positive  law,  the  diffi- 
culties that  arise  are  legion  and  are  insoluble — insolu- 
ble simply  because  the  theory  is  incapable  of  accurate 
statement;  and  therefore  the  decisions  of  the  courts 
are  necessarily  very  largely  the  expression  of  the  sub- 
jective opinions  of  the  judges  making  them.  Judge 
Chris tiancy  frankly  admits  ^  that  the  various  powers 
which  may  be  differentiated  in  accordance  with  the 
theory  of  the  separation  of  powers  differ  in  extent  in 
different  states,  which  is  simply  another  way  of  saying 
that  the  opinions  of  judges  and  publicists  differ. 
Nevertheless  there  is  the  rule  of  law  that  the  legislative 
authority  shall  not  exercise  any  judicial  or  executive 
powers,  that  the  executive  shall  not  exercise  any  legis- 
lative or  judicial  powers,  and  that  the  judicial  authority 
shall  not  exercise  any  legislative  or  executive  powers^; 

■^^  1  People  V.  Hurlburt,  24  Mich.,  44,  63. 

'  See  the  Constitution  of  Massachusetts,  art.  xxx.,  pt.  i.        _^ 


24  THE  SEPARATION  OF  POWERS, 

and  an  infringement  of  the  rule  will  lead  to  the  inva- 
lidity of  the  act  of  the  authority  so  disobeying  the  rule 
of  the  constitution/  The  student  must  therefore  ex- 
amine the  constitution  of  his  own  state  and  its  inter- 
pretation by  the  courts  of  that  state  where  they  have 
the  right  to  interpret  the  constitution,  if  he  would 
know  how  far  the  principle  of  the  separation  of  powers 
has  any  legal  effect.  This  is  particularly  true  of  the 
United  States  both  in  its  national  and  commonwealth 
organizations,  the  principle  of  the  separation  of  powers 
being  regarded  in  many  cases  as  a  fundamental  rule  in 
this  country.  But  he  must  not  expect  that  the  rule 
in  the  national  government  can  be  reconciled  with  the 
rule  in  the  commonwealth  governments  or  that  the 
rules  of  any  two  of  the  commonwealth  governments 
must  necessarily  be  the  same.  Thus  it  has  been  held 
in  some  of  the  commonwealths  that  even  in  the  ab- 
sence of  constitutional  restriction  the  legislature  may 
not  grant  a  divorce,  while  in  other  commonwealths 
this  power  has  been  recognized  by  the  courts  as  be- 
longing to  the  legislature.'^  Again  it  has  been  held 
that  the  courts  may  not  act  in  the  incorporation  of 
municipalities  in  accordance  with  the  provisions  of 
general  incorporating  acts,  since  they  are  judicial  bodies 
and  this  is  an  administrative  function.^  On  the  other 
hand,  the  courts  of  other  commonwealths  have  regarded 
this  action  as  perfectly  proper.* 

»  Gordon  v.  U.  S..  117  U.  S.,  697. 

•  Cooley,  Constitutional  Limitations,  6th  Ed.,  128,  133. 

•  People  V.  Bennet,  29  Mich.,  451  ;  People  v.  Nevada,  6  Cal.,  143. 

•  Kayser  v.  Trustees,  16  Mo.,  88  ;  Galesburg  v.  Hawkinson,  75  111.,  152  ; 
cf.  Dillon,  Municipal  Corporations ,  4th  Ed.  I.,  265.  See  also  for  the  construc- 
tion of  what  is  judicial  power  under  the  national  constitution  Hayburn's  case, 
2  Dallas,  408,  409  ;  U.  S.  v.  Yale  Todd  in  note  to  U.  S.  v.  Ferreira,  13  How., 
40,  52  ;  Gordon  v.  U.  S.,  2  Wallace,  561  ;  Miller  on  The  Constitution,  VII. 


CHAPTER  IV. 

EXCEPTIONS   TO    THE    THEORY    OF    THE     SEPARATION    OF 

POWERS. 

/. — Executive  functions  of  the  legislature. 

In  no  constitutional  state  can  the  legislature  be  shut 
out  from  all  participation  in  the  work  of  administration. 
The  organic  law  of  all  states,  even  of  those  which  pre- 
tend to  adopt  the  theory  of  the  separation  of  powers, 
provides  that  some  of  the  most  important  administrative 
or  executive  acts  shall  be  performed  not  by  the  execu- 
tive but  by  the  legislature.  One  of  these  exceptions 
to  the  rigid  adoption  of  the  principle  of  the  separation 
of  powers  is  to  be  found  in  the  usual  constitutional 
provision  that  the  assumption  of  all  obligations  by 
the  state  shall  be  made  only  with  the  consent  of  the 
legislature  or  upon  its  initiation.^  Again  we  find  that 
the  constitutions  of  most  states  give  to  the  legislature 
the  power  of  fixing  the  budget  of  the  expenses  of  the 
government.  All  such  acts  performed  by  the  legislature, 
although  they  owe  their  legal  force  to  the  fact  that 
they  have  been  performed  by  the  legislature  or  with  its 
consent,  and  although  they  are  put  into  the  form  of 
statutes,  are  nevertheless  in  fact  administrative  acts, 

'  Sometimes  such  obligations  are  to  be  assumed,  not  by  the  government  at 
all,  but  by  the  constitution-making  power.  See  e.  g.  New  York  Constitution, 
art.  vii.,  sections  9-12. 

25 


26  THE  SEPARATION  OF  POWERS. 

^.  e,  acts  resembling  more  the  acts  usually  performed 
by  the  administration  than  those  usually  performed  by 
the  legislature.  Therefore  in  those  states  in  which  a 
formal  promulgation  of  purely  legislative  acts,  i,  e, 
general  rules  of  conduct,  by  the  executive  authority  is 
necessary,  neither  do  such  acts  need  for  their  validity 
such  a  formality,  nor  is  such  a  promulgation  of  them 
made  in  practice.^  Still  in  form  such  acts  are  not 
administrative  acts,  but  are  what  have  been  called  by 
some  writers,  who  lay  great  stress  on  the  theory  of 
the  separation  of  powers,  formal  though  not  material 
statutes.^ 

Other  important  acts  not  of  a  legislative  character 
performed  by  the  legislature,  but  which  are  not  even 
put  into  the  form  of  statutes,  result  from  the  participa- 
tion of  the  legislature  in  the  determination  of  the 
executive  peTsonnel.  Thus  in  the  United  States  a 
branch  of  the  legislative  authority  is  called  upon  to 
approve  the  appointment  of  almost  all  the  important 
executive  officers  or  executive  officers  are  elected  by 
the  legislature.^  Further,  the  legislature  very  often 
possesses  the  power  of  removing  executive  officers  from 
office  either  by  the  process  of  impeachment  or  by 
declaring  its  lack  of  confidence  in  the  executive 
authorities. 

//. — Legislative  functions  of  the  executive  authority. 

Just  as  the  legislature  cannot  be  shut  out  of  all  par- 
ticipation in  the  work  of  administration  so  the  executive 
authority  cannot  be  deprived  of  all  participation  in  the 
work  of  legislation.     The  executive  cannot  be  assigned 

'  Sarwey,  Allegemeines  Verwaliungsrechty  26. 

•  Cf.  ibid. 

*  Infra,  pp.  103,  135. 


EXCEPTIONS  TO  THE  THEORY,  27 

to  the  position  of  a  mere  executing  officer.  Such  an 
application  of  the  theory  of  the  separation  of  powers 
has  never  been  accepted  in  monarchical  governments 
or  even  in  most  republics  and  would  lead  to  most 
deplorable  results.^  The  veto  power  is  one  of  the  most 
noticeable  legislative  functions  discharged  by  the  ex- 
ecutive.^ It  is  recognized  almost  everywhere  in  the 
United  States  as  belonging  to  the  executive,  at  any 
rate  in  a  limited  form.^  The  power  of  the  executive 
authority  to  initiate  law  is  also  a  legislative  function. 
While  it  is  not  granted  to  the  executive  authority  in 
the  United  States  in  either  national  or  commonwealth 
governments,  it  is  universally  recognized  as  belonging 
to  the  executive  in  France,  England,  and  Germany. 
The  American  executive  has,  however,  usually  to 
recommend  to  the  legislature  for  adoption  such  meas- 
ures as  he  shall  deem  expedient.^ 

But  the  executive  authority  should  participate  in  the 
work  of  legislation  not  only  by  the  power  of  veto 
and  of  initiating  law  but  it  also  should  have  the  power 
of  issuing  orders  of  more  or  less  general  application. 
The  needs  of  the  government  make  it  necessary  that 
many  details  in  the  law  be  fixed  less  permanently  than 
by  statute.  No  legislature,  however  wise  or  far-seeing, 
can,  with  due  regard  for  the  interests  of  the  people, 
which  differ  with  the  locality  and  change  with  the 
passage  of  time,  regulate  all  the  matters  that  need  the 


'  Sarwey,  op.  cii.,  21. 

'  Montesquieu  himself  recognized  the  inadvisability  of  confining  the  executive 
to  the  function  of  execution  and  approves  expressly  of  granting  to  the  executive 
the  veto  power.     Esprit  des  Lois,  loc.  cit. 

^  United  States  Const.,  art.  i.,  section  7,  par.  2  ;  Stimson,  American  Statute 
Law,  section  305. 

*  C/.  U.  S.  Const.,  art.  ii.,  sec.  3. 


28  THE  SEPARATION  OF  POWERS. 

regulation  of  administrative  law.  A  large  discretion 
must  be  given  to  the  administrative  authorities  to  adapt 
many  general  rules  of  law  to  the  wants  of  the  people. 
Even  though  the  organic  law  of  the  country  may  in  the 
main  confine-  the  executive  authority  to  the  execution 
of  the  resolutions  of  the  legislature,  it  still  either 
recognizes  in  the  chief  executive  authority  the  power 
of  legislation  to  fill  up  details  in  the  administrative 
law,  or  it  permits  the  legislature  to  delegate  such  a 
power  to  him  or  his  subordinates,  where  no  such  con- 
stitutional power  is  recognized  as  belonging  to  him/ 

This  power  of  the  executive  authority  to  issue  gen- 
eral rules  is  known  as  the  ordinance  power ;  and  the 
ordinances  which  are  issued  as  a  result  of  the  exercise 
of  this  power  are  of  three  kinds,  viz.^  independent 
ordinances,  supplementary  ordinances,  and  delegated 
ordinances.^ 

Independent  ordinances  are  those  ordinances  which 
are  issued  by  the  chief  executive  authority  as  the  result 
of  his  constitutional  power  to  fill  up  all  those  places 
in  the  law  which  have  not  been  touched  at  all  by  the 
legislature.  In  so  far  as  their  content  is  concerned 
they  relate  to  those  portions  of  the  law  which  have 
not  been  regulated  in  any  way  by  statute.  Such  an 
independent  power  is  found  as  a  rule  only  in  mon- 
archical governments. 

Supplementary  ordinances,  like  independent  ordi- 
nances, are  issued  by  the  chief  executive  as  a  result  of 
his  constitutional   power  of  ordinance.     They  differ, 

*  Sarwey,  op.  cit.  31  et  seq. ;  cf.  U.  S.  v.  Eliason,  16  Peters,  291,  301; 
Sampson  v.  Peaslee,  20  How,  571  ;  The  Brig  Aurora,  7  Cranch,  382,  388  ; 
Field  V.  Clark,  U.  S.  Sup.  Court,  Oct.  term,  1891;  U.  S.  v.  Barrows,  i  Abbott, 

U.  S.  351. 

'  Gneist,  Das  Englische   Verwaltungsrecht,  1884,  127. 


EXCEPTIONS  TO  THE  THEORY.  29 

however,  from  independent  ordinances  in  that  they  do 
not  attempt  to  regulate  subjects  that  have  not  been 
regulated  at  all  by  the  legislature,  but  are  issued  to 
-v  supplement  already  existing  statutes,  and  to  fill  up  the 
places  in  such  statutes  which  have  not  been  regulated 
in  detail  by  them,  or  to  make  arrangements  for  their 
execution.  The  power  to  issue  this  class  of  ordinances 
is  found  only  in  monarchical  governments  or  in  re- 
publics where  monarchical  traditions  are  strong. 

Delegated  ordinances  are  issued  by  any  of  the  ad- 
ministrative authorities  indiscriminately,  not  as  a  re- 
sult of  any  constitutional  power  of  ordinance  in  the 
chief  executive,  but  as  a  result  of  a  direct  delegation 
by  the  legislature  of  its  power  of  legislation.  These 
delegated  ordinances,  like  the  supplementary  ordi^ 
nances,  affect  those  subjects  which  have  been  already 
regulated  in  a  general  way  by  the  legislature,  but  all 
of  whose  details  have  not  been  thus  fixed.  These 
ordinances  we  find  in  all  states  and  in  all  branches  of 
the  administration.  They  are  really  the  most  import- 
ant of  all  the  ordinances  to  be  considered,  and  are  by 
far  the  most  numerous. 

///. — Executive  functions  of  the  judicial  authorities.     ^ 

Although  the  general  rule  may  be  that  the  courts 
shall  be  confined  in  the  main  to  the  decision  of  contro- 
versies between  individuals,  nevertheless  in  many 
instances  the  needs  of  government  make  it  seem  advis- 
able to  entrust  the  courts  with  functions  somewhat 
administrative  in  character.  While  this  may  be  said 
of  all  states,  it  is  especially  true  of  those  which  have 
not  really  striven  in  their  law  to  reach  any  clear  dis- 
tinction between  judicial  and  administrative  functions. 


30  THE  SEPARATION  OF  POWERS. 

Thus  in  the  commonwealths  of  the  United  States  and 
England  where  the  exceptions  to  the  logical  adoption 
and  application  of  the  theory  of  the  separation  of 
powers  are  numerous,  judicial  officers  from  time  im- 
memorial have  been  entrusted  with  the  discharge  of 
executive  or  administrative  functions/ 

"We  in  the  United  States  are  indebted  for  this  con- 
fusion to  England,  which  for  a  long  time  did  not 
attempt  to  separate  the  judicial  and  administrative 
authorities.  The  justices  of  the  peace  have  been  at 
the  same  time  judicial  and  highly  important  adminis- 
trative officers.  As  almost  all  our  important  local 
administrative  officers  originated  in  the  justices  of  the 
peace,  they  have  been  regarded  by  the  courts  as 
inferior  statutory  tribunals,  subject  to  the  never  ceasing 
interference  of  the  courts  ;  and  this  fact  has  led  to  the 
failure  in  many  cases  to  distinguish  at  all  in  our  law 
and  political  thought  between  judicial  and  adminis- 
trative functions  and  to  there  being  no  opposition 
to  the  actual  conferring  of  functions  upon  the  courts 
which  would  seem  to  be  administrative  in  nature.  A 
most  noticeable  instance  of  this  is  found  in  the  power 
given  to  the  supreme  court  in  New  York  to  approve 
the  acts  and  determinations  of  various  administrative 
commissions  such  as  the  rapid-transit  commission, 
such  acts  being  of  no  effect  until  they  have  been 
so  approved.^ 

^  In  certain  cases  this  has  been  held  to  be  unconstitutional,  supra,  p.  24. 
'  E.  g.  see  New  York  laws,  1875,  chap.  606,  section  21  ;  New  York  Con- 
stitution, art.  iii.,  section  18. 


CHAPTER  V. 

THE    RELATION    OF  THE    EXECUTIVE   TO   THE   OTHER 
AUTHORITIES. 

The  principle  of  tlie  separation  of  powers  not  only 
involves  the  existence  of  three  somewhat  separate 
authorities,  but  also  insists  that  each  authority  shall 
be  independent  of  the  other  authorities.  But  just  as 
it  is  impossible  to  distinguish  clearly  three  powers  and 
authorities  of  government,  so  is  it  impossible  that  any 
of  the  three  authorities  shall  be  absolutely  independent 
of  the  other  two.  As  administrative  law  has  to  do  with 
the  position  of  the  executive  it  is  necessary  to  examine 
its  relations  with  the  other  two  authorities. 

/. — Relation  to  the  legislature, 

1.  The  legislature  the  regulator  of  the  administration. 
— In  all  countries  the  action  of  the  executive  is  sub- 
ject to  the  control  of  the  legislature.  In  the  first 
place  the  legislature  has  the  power  to  lay  down 
norms  in  accordance  with  which  the  executive  is  to 
act.  The  legislature  has  been  called  the  regulator 
of  the  administration.^  This  does  not  mean,  how- 
ever, that  the  executive  can  act  only  in  the  execu- 
tion of  the  resolutions  of  the  legislature,  and  that 
it  possesses  no  discretion.  Even  in  the  United  States, 
where   the  power  of  the  legislature  to  regulate  the 

*  Sarwey,  op.  cii.,  37  ;  Gneist,  Der  Rechtsstaat,  181. 
31 


32  THE  SEPARATION  OF  POWERS. 

action  of  the  administration  has  been  carried  as  far  as 
anywhere,  it  is  held  that  there  is  a  sphere  in  which  the 
administration  may  move  without  looking  to  a  statute 
of  the  legislature  for  its  authorization.  Thus  Justice 
McLean  says  in  an  opinion  given  in  the  United  States 
Supreme  Court. ^ 

A  practical  knowledge  of  the  action  of  any  one  of  the  great 
departments  of  the  government  must  convince  every  person  that 
the  head  of  a  department,  in  the  distribution  of  its  duties  and 
responsibilities,  is  often  compelled  to  use  his  discretion.  He  is 
limited  in  the  exercise  of  his  powers  by  the  law  ;  but  it  does  not 
follow  that  he  must  show  a  statutory  provision  for  everything  he 
does.  No  government  could  be  administered  on  such  princi- 
ples. To  attempt  to  regulate  by  law  the  minute  movements  of 
every  part  of  the  complicated  machinery  of  government  would 
evince  a  most  unpardonable  ignorance  on  the  subject.  Whilst 
the  great  outlines  of  its  movements  may  be  marked  out,  and 
limitations  imposed  on  the  exercise  of  its  powers,  there  are  num- 
berless things  which  must  be  done  that  can  neither  be  antici- 
pated nor  defined,  and  which  are  essential  to  the  proper  action 
of  the  government.  Hence,  of  necessity,  usages  have  been  estab- 
lished in  every  department  of  the  government,  which  have  be- 
come a  kind  of  common  law,  and  regulate  the  rights  and  duties 
of  those  who  act  within  their  respective  limits.' 

Further,  it  is  generally  recognized  in  the  United 
States  that  there  is  in  the  executive  authority  a  latent 
power  of  discretionary  action  which  is  denominated 
the  war  power,  and  which  is,  in  times  of  extraordinary 
danger,  capable  of  great  expansion.  This  was  brought 
out  most  forcibly  in  the  critical  period  of  our  civil 
war.^     The  same  general  principle  is  true  in  all  states.* 

*  U.  S.  V.  McDaniel,  7  Peters,  i.,  14. 

'  See  also  In  re  Neagle,  135  U.  S.,  i.,  64-68,  which  claims  somewhat  similar 
powers  for  the  President  as  a  result  of  his  duty  to  see  that  the  laws  are  faithfully 
executed.     Infra,  p.  64. 

»  Cf.  W.  A.  Dunning  on  "  The  Constitution  in  Civil  War,"  in  the  Pol.  Set. 
Qu.,  III.,  454.  ■*  C/.  Sarwey,  <?/.  «V.,  37. 


EXECUTIVE  AND  OTHER  AUTHORITIES.      33 

It  is  seen  thus  that  while  the  main  duty  of  the  execu- 
tive is  to  execute  the  will  of  the  legislature  as  ex- 
pressed in  statute,  still  in  all  countries  there  is  a  realm 
of  action  in  which  the  executive  authority  possesses 
large  discretion,  and  that  it  looks  for  its  authority  not 
to  the  legislature  but  to  the  constitution. 

2.  The  control  of  the  legislature, — Further,  besides 
regulating  the  action  of  the  administration,  the  legisla- 
ture exercises  in  all  countries  a  direct  control  over  the 
administration  to  keep  it  within  the  law.  The  extent 
of  such  control  varies  with  the  relation  in  tenure  of 
the  executive  to  the  legislature.  If,  as  in  England  and 
France,  the  acting  executive  is  dependent  in  tenure 
upon  the  legislature,  the  extent  of  this  control  will  de- 
pend entirely  upon  tlie  attitude  which  the  legislature 
takes.  If,  as  in  France,  the  legislature  makes  an  im- 
moderate use  of  its  powers  of  control,  the  executive 
authority  becomes  completely  dependent  in  action 
upon  the  legislature ;  if,  as  in  England,  the  legislature 
imposes  bounds  upon  its  control  over  the  executive, 
beyond  which  it  will  not  go,  the  executive,  though  in 
theory  completely  dependent  in  action  upon  the  legis- 
lature, still  in  practice  will  be  largely  independent  of 
it.  The  existence  of  the  power  of  control  will  have 
simply  the  effect  of  deterring  the  administration  from 
illegal  action.  In  the  United  States  and  Germany  the 
executive  is  not  dependent  upon  the  legislature  in 
tenure ;  in  Germany,  not  at  all ;  in  the  United 
States,  only  in  such  a  way  that  it  may  be  removed  in 
case  of  absolute  corruption  and  illegal  action.  The  re- 
sult is  that  the  control  of  the  legislature  over  the  actions 
of  the  administration  in  these  countries  is  very  slight.^ 

3  >  See  infra,  II.,  p.  262. 


( 


34  THE  SEPARATION  OF  POWERS. 

II. — Relation  to  the  courts. 

In  all  countries  the  executive  authorities  are  subject 
also,  to  some  extent,  to  the  control  of  the  courts.  In 
all  states  many  of  the  acts  of  the  administration  may- 
be reviewed  by  the  courts.  The  extent  and  character 
of  the  control  which  the  courts  may  exercise  over  the 
administration,  depend  upon  the  character  of  the  act 
to  be  controlled.  From  the  point  of  view  of  this  con- 
trol the  acts  of  the  administration  may  be  classed 
under  four  heads,  viz.^  political  acts,  legislative  acts, 
acts  in  the  nature  of  contracts,  and  special  administra- 
tive acts  not  of  general  application. 

1.  Political  acts. — By  political  acts  are  meant  those 
acts  whether  of  general  or  of  special  application  done 
by  the  administration  in  the  discharge  of  its  political 
functions,  such  as  the  carrying  on  of  the  diplomatic  re- 
lations of  the  country,  the  making  of  treaties,  the  com- 
\  mand  and  disposition  of  the  military  forces  of  the 
government,  the  conduct  of  the  relations  of  the  execu- 
tive with  the  legislature.  The  general  rule  in  all  coun- 
tries is  that  the  courts  have  no  control  over  this  class 
of  acts.  Where  the  principle  of  ministerial  responsi- 
bility to  the  legislature  has  been  adopted  it  is  believed 
that  this  will  be  sufficient  to  insure  the  impartial  and 
wise  performance  of  these  political  acts.  Where  the 
principle  of  popular  responsibility  has  been  adopted  it 
is  believed  that  this  will  be  sufficient,  and  that  it  is 
unwise  to  allow  the  courts  any  control  whatever  over 
the  political  functions  of  the  executive.* 


^  E.  g.  see  Nabob  of  Carnatic  v.  East  India  Co.,  i  Vesey  Jr.,  375,  393,  2  Id.^ 
56,  60 ;  Penn,  v.  Lord  Baltimore,  i  Vesey,  467  ;  Cherokee  Nation  v.  Georgia, 
5  Peters,  i,  20  ;  Luther  v.  Borden,  7  Howard  U.  S.,  i  ;  and  Mississippi  v, 
Johnson,  4  Wallace,  475. 


EXECUTIVE  AND  OTHER  AUTHORITIES.      35 

In  France,  where  the  executive  is  more  independent 
of  the  courts  than  in  any  other  country/  a  much  wider 
interpretation  has  been  given  to  political  acts  than  is 
given  in  other  countries.  The  courts  have  gone  so  far 
as  to  hold  that  acts  of  a  very  arbitrary  character  and 
restrictive  of  private  rights,  which  were  taken  to  pro- 
mote the  public  safety  in  time  of  public  excitement, 
were  of  a  political  character.^ 

2.  Legislative  acts, — The  legislative  acts  of  the 
administration  are  to  be  found  in  the  ordinances  which 
it  has  the  power  to  issue.  The  rule  as  to  the  control 
which  the  courts  may  exercise  over  them  is  in  all 
countries  about  the  same.  The  courts  have  the  same 
power  over  them  as  the  courts  of  the  United  States 
have  over  the  statutes  of  the  legislature,  i.  e,  they  may 
interpret  them  and  in  most  cases  declare  them  void  or 
refuse  to  enforce  them  in  case  they  are  contrary  to  the 
law.^ 

3.  Cont/ractual  acts, — The  general  tendency  at  the 
present  time  as  to  the  control  which  the  courts  possess 
over  the  contractual  acts  of  the  administration  is  to 
admit  a  pretty  full  control.  England  and  the  United 
States  are  the  most  backward  in  this  respect.^ 

4.  Administrative  acts  of  special  application. — The 
fourth  class  of  acts  distinguished  are  special  adminis- 
trative acts  not  of  general  application.  In  the  United 
States  they  are  called  indiscriminately  orders,  decisions, 

'  See  Code  Penal,  art.  137. 

'  Thus  the  administrative  authorities  have,  in  order  to  prevent  the  publication 
of  a  journal  which,  it  was  claimed,  was  exciting  the  passions  of  the  people, 
wrecked  its  office,  and  the  courts  have  held  that  this  was  a  political  act,  and  not 
subject  to  review.  Arr^t  du  Conseil  d*£iat,  5  Jan.,  \%^e^,  affaire  Boule ;  cited  in 
Ducrocq,  Trait/  du  Droit,  Administratif,  I.,  section  64  ;  cf.  Aucoc,  Confer- 
ences sur  r administration,  etc.,  441,  ei  seq, 

^  Infra,  p. 74.  *See  infra,  II.  p.  149. 


36  THE  SEPARA  TION  OF  PO  WERS, 

precepts,  and  warrants.  By  tlie  performance  of  these 
acts  the  administrative  authorities  perform  a  large  part 
of  their  duties,  and  in  their  performance  they  are 
coming  into  continual  conflict  with  the  individuals 
whom  they  govern.  Some  sort  of  a  control  over  these 
acts  is  extremely  necessary;  and  in  the  kind  and 
extent  of  the  control  provided  in  different  states  we 
find  greater  differences  than  exist  in  the  case  of  the 
control  provided  for  the  three  other  classes  of  acts. 
The  four  countries  whose  law  is  being  considered  may, 
from  the  point  of  view  of  the  control  possessed  by  the 
courts  over  this  class  of  acts,  be  divided  into  two 
classes.  In  the  first  are  found  England  and  the  United 
States.  The  rule  in  these  countries  is,  that  when  an 
individual  act  of  the  administration  is  not  of  a  political 
or  a  contractual  character  the  courts  have  a  very  large 
control  over  it.  In  many  cases  they  may  annul  it, 
amend  it,  interpret  it,  and  prevent  the  administration 
from  proceeding  to  execute  it.*  In  the  second  class  of 
countries,  in  which  are  to  be  found  France  and  Ger- 
many, the  rule  is  completely  different.  The  French 
principle  of  the  independence  of  the  administration 
prevents  the  courts  from  exercising  any  sort  of  a  con- 
trol over  such  acts.  This  principle  has  been  adopted 
in  Germany.  But  in  both  countries  in  order  to  render 
justice  to  the  individual  there  have  been  established, 
for  the  review  and  control  of  certain  of  these  special 
administrative  acts,  special  tribunals  known  as  admin- 
istrative courts,  organized  quite  differently  from  the 
ordinary  courts  and  not  forming  part  of  the  regular 
judicial  system.'^ 

^  Infra,  II.,  p.  200. 

*For  the  development  of  this  subject  in  detail,  see  infra^  II.,  pp.  217,  240. 


EXECUTIVE  AND  OTHER  AUTHORITIES.      37 

///. —  The  position  of  the  executive. 

It  18  now  possible,  after  this  consideration  of  the 
relations  of  the  executive  authority,  with  the  legisla- 
ture and  the  courts,  to  see  what  is  the  position  of  the 
executive  authority.  In  the  United  States  the  execu- 
tive authority  is  almost  entirely  independent  of  the 
legislature,  but  its  acts  not  of  a  political  or  contractual 
character  are  subject  in  many  cases  to  the  control  of 
the  courts  which  are  to  keep  the  executive  within  the 
limits  of  the  law.  In  France  the  executive  authority 
is  subject  to  the  control  of  the  legislature  as  a  result  of 
the  adoption  of  the  principle  of  ministerial  responsi- 
bility to  the  legislature.  Its  relation  to  the  courts  is 
one  of  almost  absolute  independence.  In  Germany 
the  executive  authority  is  independent  of  the  legisla- 
ture, and  to  a  large  extent  also  of  the  courts.  In 
England  the  executive  authority  is  subject  to  the  con- 
trol of  both  the  legislature  and  the  courts.  Its  only 
acts  which  are  independent  of  the  courts  are  its  polit- 
ical acts,  and  certain  of  its  contractual  acts. 

The  result  is  that  the  executive  authority  is,  from 
the  administrative  point  of  view,  the  strongest  in  Ger- 
many and  France.  In  France  this  strength  is  some- 
what weakened  over  against  the  legislature  by  the 
existence  of  the  parliamentary  responsibility  of  the 
important  executive  organs,  but  is  very  great  over 
against  the  courts.  Therefore,  on  the  continent  of 
Europe,  administration,  the  function  of  the  executive 
authority,  will  be  found  to  be  more  important  than  in 
the  other  countries ;  and  it  is  on  this  account  that  the 
study  of  this  function  of  administration  is  pursued 
there  with  greater  interest  than  in  either  the  United 
States  or  England. 


CHAPTER  VI. 

TERRITOEIAL  DISTRIBUTION  OF   ADMIITISTRATIVE 
FUNCTIONS. 

/. — Participation  of  the  localities  in  administration. 

The  ends  of  the  state  which  it  is  the  duty  of  the 
government  to  realize  may  be  called  public  ends  in 
distinction  from  the  ends  of  individuals.  The  term 
public  ends  does  not,  however,  indicate  simply  those 
ends  which  are  to  be  realized  through  the  instrumen- 
tality of  the  central  government.  For,  though  the 
state  is  an  indivisible  union  of  persons  within  a  given 
territory,  still  the  people  forming  the  state  are,  in  all 
countries  of  any  size,  organized  in  a  number  of  local 
communities  which  have  been  called  into  being  through 
the  simple  fact  that  the  people  living  within  a  defined 
district  have  common  needs  which  are  peculiar  to 
themselves.  If  the  ends  which  such  people  follow 
in  their  local  organizations  are  recognized  by  the  state 
as  reaching  beyond  the  interests  of  the  individual  then 
such  ends  become  public  ends,  just  as  much  as  the 
ends  which  the  state  attempts  to  have  realized  through 
the  central  governmental  organization.  For  the  mere 
fact  that  such  ends  may  be  regarded  by  the  state  as 
public  ends  does  not  make  it  necessary  that  the  gov- 
ernment shall  act  solely  or  mainly  in  the  attainment 
of  these  ends  through  its  central  organization.     The 

38 


CENTRAL  AND  LOCAL  GOVERNMENT.  39 

state  everywhere  grants,  directly  or  indirectly,  to  the 
localities  powers  to  act  in  the  attainment  of  this  class 
of  public  ends  and  provides  that  its  central  govern- 
mental organization  shall  step  in  simply  to  assist  and 
control  the  localities.  In  other  words  central  and  local 
government  work  together  in  the  attainment  of  the 
ends  of  the  state.  The  state  may  not,  it  is  true,  recog- 
nize that  there  is  any  actual  sphere  of  local  govern- 
ment at  all  in  the  sense  that  the  localities  have  by  the 
constitution  powers,  with  the  exercise  of  w^hich  the 
central  government  may  not  interfere.  The  localities 
may  be  left  largely  at  the  mercy  of  the  central  gov- 
ernment. This  is  veiy  largely  true  of  all  countries, 
though  in  the  United  States  the  largest  of  the  local- 
ities, viz,,  the  commonwealths,  are  protected  by  the 
United  States  constitution  against  the  central  govern- 
ment, and  there  is  arising  the  belief  that  the  divisions 
of  the  commonwealths  should  in  like  manner  be  pro- 
tected by  the  commonwealth  constitutions  against  the 
commonwealth  governments.'  In  many  countries  also, 
notwithstanding  the  absence  of  constitutional  pro- 
visions assuring  to  the  localities  a  sphere  of  locab 
government,  the  people  have  become  so  convinced  of 
the  necessity  of  the  existence  of  a  degree  of  local  au- 
tonomy that  the  legislature  has  provided  that  within 
certain  limits  the  localities  shall  act  as  they  see  fit,  in 
the  pursuit  of  local  public  ends.  As  to  what  shall  be 
the  sphere  of  local  autonomy,  whether  it  be  fixed  by 
the  constitution  or  by  legislation,  it  is  impossible  to  lay 
down  many  general  principles  of  universal  application. 
It  may,  however,  be  said  that  the  localities  in  a  state 
may  not  with  due  regard  to  the  unity  of  the  state  be 

*  Burgess,  "  The  American  Commonwealth,"  Pol.  Sci.  Qu.,  I.,  32. 


40  -      THE  SEPARATION  OF  POWERS. 

permitted  to  exercise  powers  of  legislation  with  re- 
gard to  private  relations.  Of  the  four  important  coun- 
tries only  one  has  seen  fit  to  grant  by  its  constitution 
to  the  localities  such  a  legislative  power.  This  is  the 
United  States,  and  the  evils  resulting  from  the  conse- 
quent diversity  of  the  private  law  are  so  great  that  in 
more  than  one  instance  the  demand  is  being  made 
either  for  national  regulation  of  private  relations  or 
for  the  devising  of  some  method  by  which  the  law 
may  be  made  uniform.^ 

In  the  second  place  it  may  be  said  also  that,  for  the 
same  reasons,  the  localities  should  possess  no  powers 
with  regard  to  the  administration  of  justice,  that  the 
judicial  system  should  not  be  subject  to  local  regula- 
tion. Here  again  the  United  States  is  the  only  one 
of  the  four  countries  which  permits  its  localities 
to  organize  courts  that  are  to  decide  the  controversies 
arising  among  its  citizens  relative  to  their  private 
rights.  When,  however,  we  come  to  the  function  of 
administration  the  demand  for  harmony  and  uniform- 
ity is  not  so  imperious.  Even  in  France,  the  home  of 
jcentralized  government,  it  is  recognized  that,  while  the 
country  can  be  governed  from  the  centre  better  than 
from  the  localities,  it  can  be  administered  better  in  the 
localities  than  from  the  centre.  But  while  this  princi- 
ple may  be  accepted  as  generally  true,  it  must  also  be 
admitted  that  there  are  certain  branches  of  administra- 
tion in  which  the  localities  can  in  the  nature  of  things 
not  act  at  all.  Thus  the  localities  can  have  no  duties 
to  perform  in  the  administration  of  foreign  relations. 

^  See  Munroe  Smith  on  "  State  Statute  and  Common  Law  "  in  P^?/.  Sci. 
Qu.,  III.,  147,  148.  The  recent  appointment  by  the  various  commonwealth 
legislatures  of  commissioners  for  harmonizing  the  law  in  important  matters  is 
an  evidence  of  the  evils  of  diversity. 


CENTRAL  AND  LOCAL  GOVERNMENT.  41 

Further,  in  certain  other  administrative  branches,  the 
demand  for  uniformity  in  administrative  methods  is  so 
imperious,  that  if  the  localities  are  permitted  to  act  at 
all  wdthin  them,  they  must  act  subject  to  the  control 
of  the  central  government.  This  is  true  of  the  admin- 
istration of  military,  judicial,  and  financial  affairs.  In 
these  branches  the  localities  cannot  be  permitted  to 
have  any  powers  of  independent  action,  but  must  be 
regarded  as  agents  of  the  central  government  and  sub- 
ject to  its  control.  The  result  of  this  process  of  exclu- 
sion is  that  the  sphere  of  local  administrative  autonomy, 
if  recognized  at  all,  is  to  be  found  in  that  branch  of 
administration  known  as  internal  affairs.  Even  in  this 
branch,  as  in  the  others  just  mentioned,  in  many  cases 
the  localities  must,  on  account  of  the  necessity  of 
administrative  uniformity,  be  subjected  to  the  control 
of  the  central  government.  Thus  the  administration 
of  the  public  health  and  the  public  charity  and  the 
preservation  of  the  peace  cannot  be  left  altogether  to 
the  localities  independent  of  all  central  control.  What 
shall  be  the  spheres  of  central  and  local  administrative 
action  in  a  given  state,  and  what  shall  be  the  kind  and 
extent  of  central  control  exercised  over  the  localities 
where  they  are  regarded  as  the  agents  of  the  central 
government,  are  matters  to  be  determined  by  the  posi- 
tive law  of  the  particular  state ;  and  the  determinations 
reached  by  different  states  differ  considerably  one 
from  the  other,  and  are  based  upon  the  differing  social 
and  political  conditions  obtaining  therein.* 
//. — English  method. 
Two  general  methods  of  providing  for  the  participa- 
tion of  the  localities  in  the  work  of  administration 

*  Cf,  Stengel,  Organisation  der  Preussischen  Verwaltung,  11  et  seq. 


42  THE  SEPARA  TION  OF  PO  WERS. 

have  been  adopted.  By  the  one  all  the  duties  to  be 
performed  by  the  localities,  both  as  agents  of  the  cen- 
tral government  and  as  local  governmental  organiza- 
tions, are  fixed  in  detail  by  the  legislature  of  the 
central  government.*  Where  this  system  of  enumera- 
tion by  the  legislature  of  the  povrers  of  the  localities  is 
adopted,  as  is  the  case  in  England  and  the  United 
States,  no  sphere  of  independent  local  action  is  assigned 
to  the  localities.  They  may,  it  is  true,  be  regarded  as 
local  corporations  with  the  power  of  owning  property 
and  of  suing  and  being  sued,  but  they  have  no  sphere 
of  action  of  their  own.  They  are  regarded  simply  as 
districts  of  the  central  government  of  the  state  or 
commonwealth,  and  their  officers  are  simply  agents  of 
that  central  government  acting  in  the  local  divisions. 
This  is  the  case  in  the  smaller  localities  of  the  United 
States.  This  idea  is  well  brought  out  in  the  case  of 
Hamilton  Co,  v.  Miglieh^  where  the  court  says  that 
the  county  is  merely  a  division  for  the  purposes  of 
general  commonwealth  administration,  and  in  the  case 
of  Lorilla/rd  v.  The  Town  of  Monroe,^  where  it  is  held 
that  "  town  officers,"  such  as  assessors,  collectors,  etc., 
are  public  commonwealth  officers,  and  not  officers  of 
the  town  corporation  for  whose  action  the  town  is 
responsible.  Full  municipal  corporations  are,  from  this 
point  of  view  in  about  the  same  position  as  these  quasi 
corporations,  as  the  towns  and   counties   are   called. 

^  In  case  the  legislative  power  as  to  administrative  matters  is,  as  in  Germany 
and  in  the  United  States,  given  to  the  largest  divisions  of  the  state,  viz.,  the 
commonwealths  ;  the  legislatures  of  these  divisions  have  the  power  to  arrange  the 
administrative  system  as  they  see  fit  within  the  boundaries  of  the  common- 
wealth. 

8  7  Ohio  St.,  109. 

*ii  N.  Y.,  392. 


CENTRAL  AND  LOCAL  GOVERNMENT.         43 

Their  powers  are  all  enumerated,  and  it  cannot  be  said 
that  they  have  by  the  constitutions  or  the  statutes  many 
powers  of  independent  local  action.^  Under  such  a 
system  of  legislative  enumeration  the  needs  of  uniform 
administration  are,  it  is  thought,  satisfied  by  the  exer- 
cise by  the  legislature  of  its  power  to  change  the  duties 
and  increase  or  decrease  the  powers  of  the  localities. 
The  continual  interference  of  the  legislature  resulting 
from  the  exercise  of  this  power  has  had  such  evil 
results  in  the  United  States  that  the  attempt  has  in 
many  cases  been  made  to  limit  in  the  commonwealth 
constitution  the  power  of  special  and  local  legislation 
possessed  by  the  legislature.  But  as  the  general  acts 
with  regard  to  local  administration  usually  follow  the 
same  method  of  enumerating  in  detail  the  powers  and 
duties  of  the  local  authorities,  they  have  in  some  cases, 
on  account  of  the  rigidity  and  inflexibility  of  their  pro- 
visions and  of  their  inadaptability  to  local  needs,  proved 
almost  as  unsatisfactory  as  the  habit  of  special  and 
local  legislation.  This  method  of  regarding  the  locali- 
ties as  in  all  cases  the  agents  of  the  central  govern- 
ment, and  of  enumerating  in  detail  their  duties  and 
powers,  makes  unnecessary  any  further  central  control 
over  the  administration  in  the  localities.  The  control 
over  localities  and  over  local  officers  is  by  this  system 
a  legislative  control. 

///. — Continental  method. 

The  other  method  of  permitting  localities  to  partici- 
pate in  the  work  of  administration  depends  upon  clearly 
distinguishing  between  that  administrative  work  which 

«See   U.   S.  V.  B.  &  O.  R.R.  Co..  17   Wall.,   322;    cf.  Dillon,   Municipal 
Corporations,  4th  edition,  I.,  145. 


> 


44  THE  SEPARATION  OF  POWERS. 

needs  central  regulation  and  that  which  can  with  ad- 
vantage be  entrusted  to  the  localities.  The  delimita- 
tion of  a  sphere  of  local  action  is  accomplished  by  the 
determination  of  those  matters  which  need  for  their 
efficient  treatment  uniformity  in  administrative  action, 
and  which  should  therefore  be  attended  to  by  the  cen- 
tral administration.  What  is  left  after  the  subtraction 
of  these  matters  from  the  whole  sphere  of  administra- 
tion constitutes  the  sphere  of  local  administrative 
action.  The  regulation  of  the  matters  falling  within 
this  sphere  of  local  action  is  then  given  by  general 
grant  to  the  local  corporations  and  their  officers.  By 
this  method  the  local  corporations  are  not  authorities 
of  enumerated  powers  but  may  exercise  any  power 
which  has  not  been  expressly  denied  to  them,  or  has 
not  been  expressly  given  to  the  central  administration. 
This  is  the  method  very  generally  adopted  on  the  con- 
tinent of  Europe.^  Now  if  the  localities  were  permitted 
to  determine  in  concrete  cases  their  competence  there 
would  be  danger  of  disintegration  through  their  at- 
tempts to  usurp  functions  not  recognized  as  local. 
Therefore,  where  such  a  system  of  distributing  admin- 
istrative powers  has  been  adopted,  the  power  is  given 
to  the  central  administrative  authorities  to  step  in  and 
prevent  the  local  corporations  or  authorities  from  mak- 
ing such  usurpation.  Further,  as  all  administration 
demands  pecuniary  resources  and  as  the  exercise  of  the 
taxing  power  by  the  localities  may  result  in  the  disor- 
ganization of  the  general  financial  system  of  the  state, 
the  central  legislature  usually  fixes  what  kinds  of  taxes 
the  localities  may  raise,  and  permits  the  central  admin- 
istrative officers  to  exercise  a  general  control  over  the 

*  Infra^  p.  266. 


CENTRAL  AND  LOCAL  GOVERNMENT.  45 

administration  of  the  local  finances  in  order  that  in  this 
way  extravagance  may  be  prevented.  Finally,  while  it 
may  be  recognized  that  the  local  corporations  have  a 
sphere  of  action  of  their  own  in  which  they  act  subject 
to  the  central  administrative  control,  at  the  same  time 
the  central  government  may  under  this  system  recognize 
that  the  localities  are  also  in  certain  branches  agents  of 
the  central  government.  So  far  as  this  is  the  case  the 
localities  must  be  subjected  to  some  sort  of  central  con- 
trol ;  and  this  control  is  usually  as  in  the  other  cases 
an  administrative  control. 

IV. — Sphere  of  central  administration. 

But,  as  has  been  indicated,  there  are  certain  branches 
of  administration  where,  in  the  nature  of  things,  the 
localities  cannot  act  at  all  or  cannot  act  to  the  same 
advantage  as  the  central  administration.  For  these 
branches  the  central  government  forms  a  series  of  offi- 
cers unconnected  in  any  way  with  the  local  corpora- 
tions. The  tendency  in  the  United  States  has  of  late 
years  been  to  increase  the  number  of  such  administrative 
services  attended  to  by  the  central  government.  Thus 
the  customs  and  the  indirect  taxes,  formerly  often 
attended  to  by  local  officers,^  are  now  entrusted  to  offi- 
cers of  the  central  government.^  In  the  commonwealths 
all  such  matters  as  factory  inspection,  railroad  super- 
vision, the  control  of  pauper  lunatics  in  some  cases,  and 

'  Cf.  The  History  of  Tariff  Administration  in  the  United  States,  by  John  D. 
Goss  in  the  series  of  Studies  in  History,  Economics,  and  Public  Law,  edited  by 
the  University  Faculty  of  Political  Science  of  Columbia  College,  I.,  No.  2,  pp. 
12,  15. 

'  In  Germany  customs  and  indirect  taxes  are  attended  to  by  the  common- 
wealths under  the  supervision  of  the  imperial  government.      Imperial  Constitu- 
tion, arts.  35  and  38;  cf.  Meyer,  Lehrbuch  des  Deutschen  Verwaliungsrecht,  II. 
310  et  seq  ;  335. 


46  THE  SEPARATION  OF  POWERS. 

a  whole  series  of  matters  are  attended  to  by  eom- 
monwealtli  officials  unconnected  in  any  way  with  the 
local  corporations.  In  all  countries  these  central  officers, 
if  we  may  so  call  them,  are  subject  to  quite  a  strict 
central  administrative  control. 

As  a  result  of  these  arrangements  which  we  find  in 
all  countries,  the  details  offering  considerable  variety, 
we  conclude  that  not  only  is  the  function  of  admin- 
istration largely  separated  from  the  functions  of 
legislation  and  the  rendering  of  judicial  decision,  and 
entrusted  in  most  cases  to  special  authorities,  but  also 
that  these  special  administrative  authorities  are  in  all 
states  of  two  kinds,  viz,^  central  and  local,  while  in  some 
states  the  local  authorities  may  further  be  subdivided 
into  commonwealth  and  local  authorities.  As  the 
law  in  the  United  States  distributes  what  are  usually 
regarded  in  a  unified  government  as  central  powers 
between  the  national  and  the  commonwealth  govern- 
ments, this  order  will  be  so  changed  in  the  follow- 
ing pages  as  to  consider  as  central  authorities  both 
federal  and  commonwealth  authorities,  and  as  local 
only  those  subordinate  commonwealth  authorities 
having  a  territorial  competence  within  the  limits  of 
a  commonwealth. 

Of  these  two  classes  of  authorities  the  central 
authorities  have  to  attend  to  those  mattei^s  which  by 
the  law  of  the  land  have  been  recognized  as  general  in 
character,  and  where  the  central  control  over  the  local- 
ities is  an  administrative  one,  have  to  exercise  that  con- 
trol. The  local  authorities  on  the  other  hand  act  as 
agents  of  the  central  government,  and  are  local  cor- 
porations with,  in  some   states,  their  own  sphere  of 


CENTRAL  AND  LOCAL  GOVERNMENT.         47 

independent  local  action;  and  in  all  cases  are  sub- 
ject to  a  central  control  which  in  accordance  with 
the  method  of  distributing  administrative  duties 
among  the  localities  is  either  a  legislative  or  an 
administrative  control. 


BOOK  II. 
CENTRAL  ADMINISTRATION. 


Dwision  L — The  Executive  Power  and  the  Chief 
Executive  Authority, 


CHAPTER  I. 

THE   EXECUTIVE   POWER  AND   THE  EXECUTIVE    AUTHOEITY 
IN    GENERAL. 

The  organization  of  a  chief  executive  authority,  and 
the  definition  of  the  executive  power  which  should  be 
entrusted  to  it,  are  problems  which  have  always  been 
difficult  of  solution  for  both  political  scientists  and 
constitution  makers.  The  first  difficulty  which  pre- 
sents itself  is  the  organization  of  the  chief  executive 
authority.  Shall  it  be  a  board  or  one  man  ?  A  board 
ensures  deliberation,  and  by  many  has  been  supposed 
to  be  a  preventive  of  executive  tyranny;  the  one- 
headed  form  is  more  liable  to  produce  quick  and  en- 
ergetic action.  The  desire  to  produce  this  result  has 
in  almost  all  cases  been  so  great  that  the  one-headed 
form  of  the  executive  authority  is  now  almost  univer- 
sally recognized  as  the  proper  form.  The  next  great 
difficulty  has  been  found  in  the  determination  of  the 

48 


EXECUTIVE  POWER  IN  GENERAL.  49 

extent  and  character  of  the  power  which  shall  be  en- 
trusted to  the  chief  executive  authority.  Both  practi- 
cal men  and  students  have  always  had  great  difficulty 
in  obtaining  a  clear  conception  and  an  adequate 
expression  in  their  governmental  organization  of  their 
conception  of  the  power  to  be  given  to  their  chief 
executive  authority.  The  cause  of  this  difficulty  is 
twofold.  The  first  cause  of  difficulty  has  come  from 
the  theory  of  the  separation  of  powers.  This  theory 
insists  that  the  executive  authority  should  both  have 
in  his  hands  all  of  what  is  regarded  as  the  executive 
power  and  be  confined  to  the  exercise  of  the  executive 
power.  The  experience  of  the  world,  however,  goes  to 
prove  that,  if  such  an  attempt  is  made,  the  executive 
authority  tends  to  become  either  tyrannical  or  in- 
capable :  tyrannical,  if  it  have  the  entire  executive 
power ;  incapable,  if  it  have  no  other  than  the  executive 
power.  Men  have  therefore  been  compelled  to  abandon 
the  realm  of  theory  and  to  allow  themselves  to  be 
governed  in  their  determination  of  the  power  to  be  given 
to  the  executive  authority  by  the  history  and  needs  of 
the  country  for  which  they  were  forming  a  constitution, 
with  the  natural  result  that  the  conceptions  of  the 
character  and  extent  of  the  executive  power  which 
the  constitutions  of  existing  states  present  are  quite 
different  the  one  from  the  other. 

The  second  cause  of  the  difficulty  of  determining 
what  shall  be  the  power  entrusted  to  the  chief  execu- 
tive authority  is  to  be  found  in  the  failure,  which  is  so 
often  made,  to  recognize  that  what  is  called  the  execu- 
tive power  really  consists  of  two  functions.  These  are 
the  political  or  "  governmental "  function,  as  the  French 
call  it  and  the  administrative  function.     These  two 


50  CENTRAL  ADMINISTRATION. 

functions  it  is  somewliat  difficult  to  distinguish,  but  the 
distinction  does  exist,  and  is  capable  of  perception.  A 
noted  French  writer  on  administration  has,  as  clearly  aa 
any  one,  brought  out  this  distinction,  which  is  more 
pronounced  in  France  than  elsewhere,  and  has  an  im- 
portant influence  on  the  French  law.  This  is  M.  Aucoc^ 
who  says  ^ : 

When  we  distinguish  government  from  administration  we 
mean  to  put  into  a  special  category  the  direction  of  all  affairs 
which  are  regarded  as  political,  that  is  to  say  the  relations  of  the 
chief  executive  authority  with  the  great  powers  of  the  govern- 
ment :  the  summoning  of  electors  for  the  election  of  senators  and 
representatives,  the  closing  of  the  session,  the  convocation  of  the 
chamber  of  deputies  and  of  the  senate,  the  closing  of  their  session,, 
the  dissolution  of  the  chamber  of  deputies  ;  the  carrying  on 
of  diplomatic  relations  with  foreign  powers,  the  disposition  of  the 
military  forces,  the  exercise  of  the  right  of  pardon,  the  granting 
of  titles  of  nobility. 

He  adds : 

The  administrative  authority  has  a  mission  altogether  differ- 
ent. It  is  charged  with  providing  for  the  collective  needs  of  the 
citizens  which  the  initiative  of  individuals  or  associations  of  in- 
dividuals could  not  adequately  satisfy  ;  it  must  gather  together  the 
resources  of  society  both  in  men  and  money  in  order  that  society^ 
may  continue  to  exist  and  make  progress  ;  it  must  play  the  part  of 
the  man  of  business  of  society,  in  its  management  of  the  various^ 
public  services,  as  for  example  in  the  matter  of  public  works  ;  it 
must  take  measures  of  supervision  and  must  through  the  exercise 
of  foresight  preserve  the  property  destined  for  the  use  of  the 
public,  must  maintain  order  and  further  the  general  prosperity. 

Some  constitution  makers  and  political  scientist* 
have  regarded  the  executive  power  as  composed  of 
only  the  first  of  these  powers  ;  others,  while  recognizing 

^  Conf&ences  sur  P Administration,  etc.,  I.,  78. 


EXECUTIVE  POWER  IN  GENERAL.  51 

the  existence  of  both,  have  laid  such  emphasis  on  the 
political  side  of  the  executive  -power  as  almost  to 
ignore  the  necessity  of  the  possession  by  the  chief  ex- 
ecutive authority  of  any  administrative  power ;  while, 
finally,  others  have  seen  that  an  efficient  executive  must 
be  an  administrator  as  well  as  a  statesman.  The  dif- 
ferent ideas  that  men  have  had  of  the  part  of  the 
executive  power  which  should  be  given  the  greatest 
prominence  have  thus  led  to  great  differences  in  the 
determination  of  the  power  to  be  given  to  the  chief 
executive  authority.  In  some  governments  we  find  the 
executive  authority  is  simply  a  political  chief.^  This 
is  the  position  which  has  been  assigned  to  the  executive 
authority  in  the  commonwealths  in  the  United  States. 
In  other  governments  the  political  power  has  been 
brought  largely  under  the  control  of  the  legislature. 
The  position  of  the  chief  executive  as  an  administrator 
is  much  more  important  than  his  position  as  a  political 
authority.  This  is  very  largely  true  of  France  and  to 
a  certain  extent  of  England.  Finally,  in  other  govern- 
ments the  chief  executive  authority  has  been  recognized 
as  both  a  political  authority  and  chief  of  the  adminis- 
tration. This  is  the  case  in  the  United  States  national 
government  and  in  Germany.  In  those  states  which 
recognize  the  chief  executive  as  merely  a  political 
officer,  the  administrative  power  is  given  to  another 
series  of  officers  quite  distinct  from  the  chief  executive 
authority  and  very  largely  independent  of  him,^  and 
in  many  instances  is  exercised  by  judicial  bodies. 

^  Even  as  a  political  chief  the  powers  of  the  executive  authority  will  vary 
greatly.  In  some  it  will  thus  have  the  veto  power,  in  others  not  ;  in  some  it 
will  have  a  large  power  of  ordinance,  in  others,  almost  none  at  all  except  such 
as  is  delegated  to  it  by  the  legislature  which  may  be  very  chary  of  its  delegations. 

'  Infra,  p.  136. 


< 


CHAPTER  II. 

HISTORY    OF   THE   EXECUTIVE   AUTHORITY  AND   POWER   IN 
THE    UNITED    STATES. 

The  office  of  chief  executive  was  naturally  the  most 
difficult  to  organize  in  the  United  States  government. 
The  form  of  the  office  gave  the  framers  of  the  national 
constitution  little  trouble.  They  were  substantially 
agreed  upon  the  one-headed  form  though  the  board 
form  was  considered.^  In  their  decision  as  to  the  powers 
to  give  to  their  executive  chief  they  were,  even  more 
than  in  their  decision  as  to  the  form  of  the  office,  guided 
by  the  models  with  which  they  were  acquainted.  These 
models  were  the  office  of  colonial  governor  and  the 
English  King  as  they  understood  his  position.^  It  has 
often  been  said  that  they  modelled  their  President  on 
the  English  King,  but  careful  consideration  would  seem 
to  show  that  the  influence  of  Englisli  institutions  was 
less  strong  than  is  usually  believed,  and  that  the  fram- 
ers of  the  national  constitution  introduced  into  their 
new  government  the  American  governor  rather  than 
the  English  King.^     What  now  were  the  powers  of  the 

'  Elliot's  Bedates,  Philadelphia,  1876,  v. passim  ;Rnttima.n,  Das  Nord-Amer- 
ikanische  Bundesstaatsrecht,  I.,  232  ;  see  also  J.  H.  Robinson  on  "  Original 
Features  in  the  United  States  Constitution,"  in  Annals  of  American  Academy 
of  Political  and  Social  Science^  I.,  222. 

^  Elliot's  Debates,  loc.  cit.  ;  Annals,  etc.,  loc.  cit. 

^  The  author  is  glad  to  see  that  the  result  of  his  own  study  is  corroborated  by 
Prof.  James  Bryce,  American  Commonwealth^  I.,  36. 

5* 


HISTORY  OF  THE  EXECUTIVE.  53 

commonwealth  governors  at  the  time  the  national  con- 
stitution was  framed  ?  This  question  may  be  answered 
by  a  study  of  the  position  of  the  governor  in  the  three 
most  important  commonwealths  of  the  time,  viz.^  New 
York,  Massachusetts,  and  Virginia. 

/. —  The  executive  power   in   New   York  at  the  time  of  the 
framing  of  the  national  constitution. 

By  the  first  two  charters  or  patents  relating  to  the 
territory  embracing  what  is  now  the  commonwealth  of 
New  York  the  entire  governmental  power  was  given 
to  the  Duke  of  York.  This  power  he  transferred  to  a 
governor  whom  he  appointed.^  In  1685,  James,  Duke 
of  York,  became  King  of  England.  The  character  of 
the  colony  changed.  It  had  been  proprietary  ;  it  now 
became  provincial.  The  character  of  its  institutions 
remained,  however,  the  same.  The  commission  and 
instructions  issued  to  the  governor,  in  which  his  powers 
are  to  be  found  since  New  York  was  not  a  charter 
colony,  still  gave  to  the  governor  under  the  King  the 
entire  governmental  power  and  limited  the  exercise  of 
that  power  only  by  requiring  for  the  validity  of  certain 
of  his  acts  the  consent  of  a  council  whose  members 
were  chosen  by  the  King.^  After  the  great  revolution 
of  1688,  another  limitation  was  placed  upon  the  exer- 
cise of  the  powers  of  the  governor,  in  that  provision 
was  made  in  the  commission  and  instructions  for  the 
summoning  of  a  popular  assembly  whose  consent  was 
to   be   necessary  for   all  laws  and  ordinances.^     The 

'  Poore's  Charters  and  Constitutions,  I.,  785,  786  ;  Documents  Relating  to  iJu 
Colonial  History  of  New  York^  III.,  215  et  seq.,  331. 
'  Documents,  etc..  III.,  377, 
•  An  assembly  was  summoned  in  1683,  but  it  had  little  influence. 


54  CENTRAL  ADMINISTRATION. 

governor  had  the  power  to  adjourn,  prorogue,  and  dis- 
solve this  assembly.  His  other  powers  enumerated  in 
the  commission  and  instructions  were  to  appoint  all 
officers  necessary  for  the  administration  of  justice  and 
the  execution  of  the  laws ;  with  the  consent  of  the 
council  and  in  accordance  with  royal  order,  to  organize 
courts  of  justice  and  with  the  council  to  act  as  the 
court  of  appeals  in  civil  cases.  The  governor  had  also' 
the  pardoning  power  and  an  extensive  military  power.^ 
Such  was  the  legal  position  of  the  governor.  The 
assembly  in  course  of  time,  however,  began  to  encroach 
on  the  power  of  the  governor,  and  practically  intro- 
duced important  modifications  into  the  governmental 
system.  We  find  the  letters  of  the  governors  to  the 
English  Board  of  Trade,  which  had  a  supervision  over 
the  affairs  of  the  colonies,  full  of  complaints  of  the  re- 
fractory character  of  the  assemblies.^ 

The  points  on  which  the  colonists  laid  the  greatest 
stress  in  their  struggles  with  the  governors  were,  as 
might  be  supposed,  first,  the  control  of  the  finances, 

'  Documents,  etc.^  II.,  623  and  685. 

'  See  Documents,  etc.,  VI,,  456,  460,  472,  533,  543,  550,  554,  597,  752,  and 
764.  In  one  of  these  letters  the  governor  says :  "By  his  majesty's  commission 
as  well  as  instructions  to  his  governors  of  this  province  all  publick  money  is  to 
be  issued  by  warrant  from  the  governor  with  the  advice  and  consent  of  the 
council.  By  every  act  granting  money  to  the  king  for  several  years  past  great 
part  of  the  money  is  issued  without  such  warrant  and  sometimes  by  warrant  of 
the  speaker  of  the  assembly  only." 

In  another  letter  dated  March  19,  1749,  ^^^  written  to  the  Duke  of  Bedford, 
the  governor  says  :  "  I  must  beg  further  to  observe  to  your  Grace  that  the  first 
encroachments  on  the  royal  prerogative  began  under  the  administration  of  Mr. 
Hunter,  that  the  assembly  took  advantage  of  the  necessities  the  administration 
was  then  under  (by  the  war  with  France  and  an  expedition  then  set  on  foot  in 
America  against  Canada),  to  claim  a  right  of  appointing  their  own  treasurer 
and  refused  to  support  the  government  unless  this  was  yielded  to  them." 

He  then  adds  that  Mr.  Hunter  struggled  against  them  for  four  years  and  was 
then  forced  to  yield.  Cf.  Gitterman,  "  The  Council  of  Appointment  in  New 
York,"  Pol.  Sci.  Qu.,  VII.,  80. 


HISTORY  OF  THE  EXECUTIVE,  55 

and,  second  the  right  of  appointing  officers  as  being 
the  most  important  powers  which  the  governors  pos- 
sessed. After  the  wasteful  administration  of  Lord 
Oornbury  they  insisted  on  specifying  the  purposes  for 
which  the  money  which  they  granted  should  be  spent, 
and,  after  they  had  secured  the  recognition  of  this  power, 
during  the  administration  of  Governor  Clinton  they 
made  use  of  this  power  of  appropriation  to  grant  their 
salaries  to  the  officers  of  the  government  by  name,  thus 
assuming  to  themselves  a  large  portion  of  the  appoint- 
ing power.  The  result  of  the  constitutional  develop- 
ment during  the  colonial  period  in  New  York  was 
that  the  legislature  had  at  the  time  when  New  York 
became  independent  almost  absolute  control  over  the 
finances,  granting  the  money,  making  the  appropriations, 
and  controlling  the  officer  on  whose  warrant  it  was 
issued,  and  participated  quite  largely  in  the  exercise  of 
the  appointing  power.  When  New  York  became  inde- 
pendent it  was  only  natural  that  the  framers  of  the 
new  constitution  which  was  adopted  should  incorporate 
into  their  new  instrument  of  government  the  principles 
for  whose  recognition  they  had  for  so  long  a  time  been 
struggling  with  the  colonial  governors ;  and  we  find 
that  the  constitution  of  1777  differed  from  the  pre- 
viously existing  polity  of  New  York  only  in  that  these 
principles  were  now  given  the  sanction  of  written  law 
and  in  that  the  whole  political  system  was  somewhat 
leavened  by  the  prevailing  political  philosophy,  espe- 
cially by  the  two  principles  of  popular  sovereignty 
and  the  separation  of  powers.  Thus  by  the  new  con- 
stitution the  finances  for  whose  control  the  people  had 
been  struggling  were  put  into  the  hands  of  the  legisla- 
ture.    Taxes  could  be  levied  and  money  appropriated 


56^^^  CENTRAL  ADMINISTRATION, 

only  by  tlie  legislature.'  The  treasurer  on  whose  war- 
rant all  money  was  to  be  issued  was  to  be  elected  by 
the  legislature  by  an  act  to  originate  in  the  assembly.'^ 
The  governor's  power  of  appointment,  which  had  also 
been  a  point  at  issue  in  former  times,  was  subjected  to 
a  legislative  control  in  that  the  consent  of  a  council  of 
appointment,  to  be  composed  of  members  of  the  legis- 
lature and  elected  by  the  legislature,  was  made  neces- 
sary for  the  valid  appointment  of  all  officers  appointed 
by  the  governor.^  The  principle  of  the  separation  of 
powers  made  itself  felt  in  that  the  new  constitution 
attempted  to  define  the  so-called  different  powers  of 
government,*  and  allowed  the  governor  almost  no  con- 
trol over  legislation  5  and  absolutely  none  over  the 
rendering  of  justice.  This  resulted  from  the  failure 
to  enumerate  among  his  powers  any  judicial  powers 
other  than  the  power  of  pardon  ^  and  the  express  for- 
mation of  a  system  of  courts  w^hich  were  to  decide  all 
controversies.  The  principle  of  popular  sovereignty 
made  itself  felt  in  that  the  governor  was  to  be  elected 
by  the  people  and  was  reduced  to  the  position  of  an 
officer  who  was  simply  to  execute  the  laws  with  little 
discretion.^  There  could  no  longer  be  any  authority 
to  issue  instructions  to  him  since  the  power  of  the  Eng- 
lish King  was  no  longer  recognized. 

//. —  The  executive  power  in  Massachusetts. 

The  history  of  the  province  of  Massachusetts  begins 
with  the  year  1691.      The  provincial  charter  which 

*  Art.  ix.     The  system  was  thus  in  this  respect  the  same  as  in  the  colonial 
period. 

•  Art.  xxii.  '  Art.  xxiii.  *  Arts,  ii.,  xvii.,  xxxii. 
»  Art.  iii.                                •  Art.  xviii.  '  Cf.  Art.  i. 


HISTORY  OF  THE  EXECUTIVE.  57 

was  then  giveu  to  the  colony  united  the  two  formerly 
existing  colonies  of  Massachusetts  Bay  and  Plymouth/ 
This  charter  formed  by  the  side  of  the  governor  a 
legislative  body,  the  General  Court,  which  consisted  of 
the  governor's  council,  chosen  by  the  General  Court, 
and  of  representatives  chosen  by  the  freeholders  of  the 
colony.  The  governor  had  the  power  to  adjourn,  pro- 
rogue, and  dissolve  the  General  Court ;  could,  with  the 
consent  of  the  council,  appoint  a  great  many  officers, 
mostly  local  in  character,  though  the  general  appoint- 
ing power,  where  there  was  no  special  provision  in 
the  charter,  belonged  to  the  General  Court ;  had  a  veto 
power  over  all  the  acts  of  the  General  Court;  had 
very  limited  judicial  powers — only  the  probate  of  wills 
and  the  granting  of  administrations ;  and  finally  had 
extensive  military  powers,  some  of  which  could  be 
exercised  only  with  the  consent  of  the  council. 

It  will  be  noticed  from  this  enumeration  that  the 
legislature  had  under  the  charter  of  1691  almost  all 
the  powers  which  the  New  York  assembly  tried  for  so 
long  a  time  to  get.  It  had  the  general  appointing 
power,  and  through  this  a  large  control  over  the  finan- 
ces, since  it  could  appoint  its  own  treasurer.  We  find 
therefore  that  the  Massachusetts  legislature  did  not 
encroach  seriously  upon  the  powers  of  the  governor ; 
and  that  on  the  adoption  of  a  constitution  in  1780  no 
very  great  changes  were  made  in  the  form  of  the  gov- 
ernment. Of  course  the  substitution  of  the  doctrine 
of  popular  sovereignty  for  that  of  royal  sovereignty, 
as  well  as  the  adoption  of  the  principle  of  the  separa- 
tion of  powers  which  was  very  forcibly  announced,^ 
made  some  changes,  but  these  are  about  all.     Thus  the 

*  Poore,  op.  cit.,  I,,  949.  '  See  Const.,  Art.  xxx.,  part  i. 


58  CENTRAL  ADMINISTRATION. 

constitution  of  the  new  commonwealth  provided  that 
the  governor  was  to  be  elected  by  the  people.  The 
governor  lost  his  control  over  the  legislature ;  his  veto 
power  was  limited  and  his  judicial  powers  disappeared. 
His  military  powers  were  about  the  same  as  before,  and 
as  before  he  could  appoint  most  of  the  judicial  and 
local  officers,  but  all  the  important  central  officers  of 
the  commonwealth  were  to  be  appointed  by  the  Gen- 
eral Court. 

///. —  The  executive  power  in  Virginia, 

Virginia,  like  New  York,  had  no  colonial  charter. 
Recourse  must  therefore  be  had  to  the  commission  and 
instructions  issued  to  the  governor  to  find  what  was 
the  extent  of  the  executive  power.  In  Beverly's 
History  of  Virginia^  published  about  the  year  1705, 
is  found  a  tolerably  complete  description  of  the  civil 
polity  of  the  colony  based  on  this  commission.^  We 
find  a  governor  appointed  by  the  King  and  subject  to 
his  instructions,  with  the  power  to  adjourn,  prorogue, 
and  dissolve  the  assembly  and  to  veto  all  their  acts. 
The  governor's  power  of  appointment  extended,  as  a 
rule,  only  to  the  local  officers ;  he  had  large  military 
powers,  but  the  appointment  of  the  most  important 
officers  of  the  colonial  financial  administration  belonged 
to  the  assembly  whose  speaker  acted  as  treasurer.^ 

It  will  be  noticed  that,  as  in  Massachusetts,  the 
legislature  had  as  early  as  1705  what  the  assembly  in 
New  York  struggled  so  long  to  get,  viz.^  the  control  of 
the  finances.  Therefore  we  find  few  attempts  on  the 
part  of  the  legislature  to  encroach  upon  the  powers  of 

'  Book  iv.,  part  i. 

'  Campbell,  History  of  Virginia,  535  et  seq. 


HISTORY  OF  THE  EXECUTIVE. 


59 


the  governor;  and  that  when  the  colonists  came  to 
form  their  commonwealth  government  at  the  time  of 
the  declaration  of  independence  they  did  not  find  it 
necessary  to  make  many  changes  beyond  those  which 
the  prevalent  political  philosophy  made  it  probable 
they  would  adopt. 

Thus  the  principle  of  the  sovereignty  of  the  people 
is  seen  in  the  fact  that  the  governor  was  to  be  elected 
by  the  people's  representatives,  the  legislature.  In 
accordance  with  the  principle  of  the  separation  of 
powers  he  lost  his  control  over  the  legislature,  by  the 
/  abolition  of  the  power  of  dissolution  and  prorogation 
and  the  veto  power.  He  had  still  the  same  appointing 
power  as  before — that  is,  for  local  officers, — but  subject 
to  the  consent  of  the  council.  He  had  also  to  exercise 
with  the  advice  of  the  same  body  the  military  power 
and  the  power  of  pardon.  The  important  central 
officers,  including  the  treasurer,  were  to  be  appointed 
by  the  legislature. 

IV. —  The  A  merican  conception  of  the  executive  power  in  1 787. 

The  American  conception  of  the  executive  power 
prevailing  at  the  time  of  the  adoption  of  the  common- 
wealth and  national  constitutions,  as  evidenced  by  the 
examples  which  have  been  adduced,  corresponded  with 
that  part  of  the  executive  power  which  has  been 
called  the  political  or  governmental  power.  The  great 
exception  to  this  was  that  the  carrying  on  of  foreign 
relations  was  not  included  in  the  governor's  powers. 
This  does  not,  however,  prove  that  this  power  was  not 
considered  a  part  of  the  executive  power.  The  omis- 
sion of  this  power  was  due  entirely  to  the  peculiar 


6o  CENTRAL  ADMINISTRATION. 

position  of  the  colonies,  and  later  of  the  common 
wealths.  The  care  of  the  foreign  relations  was  not  in 
the  governor's  hands  simply  because,  during  the  coloni- 
al period,  the  mother  country,  and  during  the  existence 
of  the  commonwealths  as  separate  states  the  continental 
congress  had  attended  to  this  matter. 

To  a  similar  reason  is  due  the  fact  that  the  governor 
did  not  have  very  extensive  administrative  powers. 
Administrative  matters,  outside  of  those  connected 
with  the  military  powers  of  the  governor,  had  not  been 
attended  to  by  tlie  central  colonial  government,  but,  in 
accordance  with  the  English  principles  of  local  govern- 
ment, by  officers  in  the  various  localities,  and  mainly 
judicial  in  character.  Thus  in  the  case  of  the  adminis- 
trative matters  connected  with  justice,  almost  the  only 
matters  attended  to  by  the  governor  were  embraced  in 
the  powers  of  appointment  and  removal.  The  every- 
day matters  of  court  administration  were  attended  to 
either  by  the  courts  themselves,  or  by  the  officers  in 
the  localities  in  which  the  courts  had  jurisdiction. 
The  facts  were  the  same  in  the  branch  of  the  adminis- 
tration known  as  internal  affairs.  Here  the  central 
colonial  government  had  little  to  do  except  to  appoint 
certain  of  the  officers,  the  justices  of  the  peace  and 
sheriffs,  who,  after  their  appointment,  attended  to  those 
matters  in  their  own  discretion.  Further,  this  branch 
of  administration  was  a  very  small  one,  embracing 
practically  only  such  matters  as  the  preservation  of  the 
peace,  the  care  of  the  poor  and  of  highways  and  local 
finances.  There  was  thus  left  only  one  branch  of 
administration  in  which  the  central  colonial  govern- 
ment had  any  powers  to  exercise.  This  was  the 
administration  of  the  central  finances ;  and  here,  on 


HISTORY  OF  THE  EXECUTIVE.  6i 

account  of  the  impoi*tance  of  this  branch  of  administra- 
tion, we  find  that  in  all  the  three  colonies  the  question 
was  definitely  settled  before  the  revolution  that  the 
legislature  should  exercise  a  very  important  control 
over  the  finances,  if  it  did  not  take  them  into  its 
absolute  administration.  It  claimed,  and  obtained  the 
power  to  vote  all  the  supplies  that  the  government 
could  obtain,  to  specify  in  its  appropriation  acts  for 
what  purposes  the  money  it  had  raised  should  be 
expended,  and  to  designate  the  officer  who  was  to  have 
charge  of  its  collection  and  disbursement.  The  power 
of  appointment,  which  is  an  administrative  power  that 
is  to  be  found  in  all  the  branches  of  administration, 
was  treated  differently  in  different  commonwealths,  but 
the  conception  that  it  belonged  to  the  governor  in  the 
case  of  other  than  judicial  and  local  officers  was  not 
very  clear.  In  New  York  alone  it  can  be  said  that  the 
general  power  of  appointment  was  regarded  as  one  of 
the  governor's  powders,  and  even  here  it  was  subjected 
to  a  legislative  control.  One  fact  further  deserves 
mention.  That  is,  that  the  governor  possessed  neither 
in  the  colony  nor  in  the  commonwealth  any  general 
ordinance  power,  even  to  supplement  existing  law.  As 
Koger  Sherman  said :  "  The  executive  is  not  to  exe- 
cute his  own  will,  but  the  will  of  the  legislature 
declared  by  laws." ' 

The  only  purely  administrative  branch  attended  to 
by  the  central  colonial  and  commonwealth  government 
was,  then,  the  financial  administration,  which  was  al- 
most entirely  attended  to  by  the  legislature.  This 
formed  the  model  which  the  framers  of  the  new  na- 
tional government  tried  to  copy  when  they  came  to 

*  Quoted  in  Conkling's  Executive  Power,  1882,  pp.  62  et  seq. 


62  CENTRAL  ADMINISTRATION, 

build  up  a  great  administrative  system,  but  which 
their  successors  were  forced  by  circumstances  to 
abandon. 

F. —  The  history  of  the  executive  power  in  the  early  national 

government. 

1.  Original  position  of  the  President. — The  national 
constitution  provided  for  a  President,  in  whom  the 
executive  power  should  be  vested.^  What  the  mean- 
ing of  those  words  was  in  1787  has  just  been  shown. 
It  was  that  the  President  was  to  have  a  military  and 
political  power  rather  than  an  administrative  power. 
The  meaning  of  these  words  is  further  explained  by 
the  enumeration  of  the  specific  powers  which  were 
granted  to  the  President  by  the  constitution.  These 
are  the  same  powers  possessed  by  the  governors  of  the 
commonwealths.  They  are  the  power  of  military  com- 
mand, the  diplomatic  power,  the  limited  veto  power, 
the  power  of  pardon,  the  power  to  call  an  extra  ses- 
sion of  Congress,  to  adjourn  it  in  case  of  a  disagree- 
ment between  the  houses,  and  the  power  to  send  a 
message  to  the  Congress.  The  general  grant  of  the 
executive  power  to  the  President  means  little  except 
that  the  President  was  to  be  the  authority  in  the  gov- 
ernment that  was  to  exercise  the  powers  afterwards 
enumerated  as  his.  The  only  other  enumerated  power 
is  an  administrative  power,  and  is  also  the  only  purely 
administrative  power  that  is  mentioned  clearly  in  the 
constitution.     This  is  the  power  of  appointment.^ 

'  Art.  ii.,  section  i. 

'  Art.  ii.,  sec.  2,  par.  2,  provides  that  "  the  President  shall  nominate,  and  by  and 
with  the  advice  and  consent  of  the  senate  shall  appoint,  ambassadors,  other  pub- 
lic ministers  and  consuls,  judges  of  the  Supreme  Court,  and  all  other  officers  of 


HISTORY  OF  THE  EXECUTIVE.  d^ 

Finally  it  is  to  be  noted  that,  in  accordance  with  the 
American  conception  of  the  executive  power,  the 
President  did  not  have  any  power  to  issue  general 
ordinances,  even  to  supplement  existing  law,  which 
would  bind  the  citizen.  The  only  ordinance  power 
which  the  President  had  at  the  beginning  of  our  his- 
tory, and  indeed  has  now,  is  the  power  to  issue  ordi- 
nances when  the  legislature  has  specifically  delegated 
to  him  the  power  to  regulate  a  given  subject.  The 
only  possible  exception  to  this  rule  is  that  in  times  of 
war  the  war  power  which  is  generally  recognized  as 
belonging  to  the  President  is  susceptible  of  very  great 
extension  and  may  be  construed,  indeed  in  the  past 
has  been  construed,  as  giving  to  the  President  quite 
an  ordinance  power.' 

It  will  be  seen  from  this  enumeration  of  the  powers 
given  to  the  President  by  the  national  constitution 
that  the  conception  of  the  executive  power  held  by 
the  framers  of  the  national  constitution  was  the  same 
as  that  to  be  found  expressed  in  the  constitutions  of 
the  three  commonwealths  whose  constitutional  history 
has  been  examined.  The  President  had  the  political 
power  and  one  administrative  power,  viz.^  the  power 
of  appointment.  Beyond  the  power  of  appointment 
he  had,  so  far  as  the  express  provisions  of  the  consti- 

the  United  States  whose  appointments  are  not  otherwise  provided  for,  and 
which  shall  be  established  by  law.  But  the  Congress  may,  by  law,  vest  the  ap- 
pointment of  such  inferior  officers  as  they  may  think  proper  in  the  President 
alone,  in  the  courts  of  law,  or  in  the  heads  of  departments."  Paragraph  3  adds  : 
"  The  President  shall  have  power  to  fill  all  vacancies  that  may  happen  during 
the  recess  of  the  senate  by  granting  commissions  which  shall  expire  at  the  end 
of  their  next  session."  Further,  section  3  gives  to  the  President  the  power  of 
commissioning  all  the  officers  of  the  United  States, 

*  See  supra,  p.  32  ;  and  Fisher,  "  Suspension  of  Habeas  Corpus  "  in  Pol.  Sci. 
Qu.,  III.,  163. 


64  CENTRAL  ADMINISTRATION. 

tution  were  concerned,  no  control  over  the  administra- 
tion at  all. 

2.  Change  due  to  the  'power  of  removal, — But  Ameri- 
can development  has  completely  changed  this  concep- 
tion of  the  power  possessed  by  the  President.  In  the 
first  place  the  duty  imposed  upon  him  by  the  constitu- 
tion, to  see  that  the  laws  be  faithfully  executed,'  has 
been  construed  by  the  Congress  as  giving  it  the  power 
of  imposing  duties  and  conferring  powers  upon  the 
President  by  statute,  and  has  led  to  the  passage  of 
almost  innumerable  laws  which  have  greatly  increased 
the  importance  of  the  President's  position,  and  have 
given  him  powers  and  duties  relative  to  the  details  of 
many  administrative  branches  of  the  national  govern- 
ment.' In  the  case  of  In  re  Neagle  it  is  said  that 
under  this  power  the  President  is  not  limited  to  the 
enforcement  of  acts  of  Congress  according  to  their  ex- 
press terms.  This  power  includes  rights  and  obliga- 
tions growing  out  of  the  constitution  itself.  As  a 
result  of  it  the  President  may  protect  an  officer  of  the 
United  States  in  the  discharge  of  his  duties.' 

The  second  cause  of  the  change  in  the  position  of  the 
President  is  to  be  found  in  the  interpretation  of  the 
constitution  made  by  the  first  Congress  relative  to  the 
power  of  removal.  The  constitution  gave  the  power 
of  removal  to  no  authority  expressly.  The  question 
came  up  before  the  first  Congress  in  the  discussion  of 
the  act  organizing  the  department  of  foreign  affairs. 
Although  there  was  a  difference  of  opinion  in  the 
Congress  as  to  who  under  the  constitution  possessed 

^  Art.  ii.,  sec.  3. 

*  Elmes,  Executive  Departments,  13,  14. 

»  135  U.  S.,  I..  64,  68. 


HISTORY  OF  THE  EXECUTIVE.  65 

this  power,  it  was  finally  decided  by  a  very  small 
majority  that  the  power  of  removal  was  a  part  of  the 
executive  power  and  therefore  belonged  to  the  Presi- 
dent. This  was  the  recognized  construction  of  the 
constitution  for  a  great  number  of  years,  although  it 
did  not  meet  with  the  approval  of  some  of  the  most 
eminent  statesmen/  After  more  than  three  quarters 
of  a  century  Congress  deliberately  reversed  this  decision 
and  by  the  ten ure-of -office  acts  of  1867-9  (later  incor- 
porated in  the  Revised  Statutes  as  sections  1767-1769) 
decided  that  the  constitution  had  not  impliedly  or 
expressly  settled  this  point,  and  that  Congress  was 
therefore  the  body  to  decide  who  possessed  the  power 
of  removal.  Congress  then  decided  that  the  power 
of  removal  of  senate  appointments  belonged  to  the 
President  and  the  senate.'  For  twenty  years  this 
was  the  law  of  the  land  though  no  one  was  able  to 
explain  exactly  what  the  tenure-of -office  acts  meant,  on 
account  of  the  obscurity  of  their  wording;  but  finally 
in  1887  Congress  repealed  them.  The  result  is  that 
the  early  interpretation  of  the  constitution  must  be 
regarded  as  the  correct  one  at  the  present  time.  That 
is,  the  President  alone  has  the  power  of  removal  of  even 
senate  appointments.  Though  the  tenure-of-office  acts 
had  the  effect  of  temporarily  weakening  the  power  of 
the  President,  the  complete  power  of  removal  had 
existed  so  long  as  to  determine  the  position  of  the 
President  in  the  national  government  and  has  been  of 
incalculable  advantage  in  producing  an  efficient  and 
harmonious  national  administration.  The  benefits  which 


*  This  construction  was  approved  by  the  United  States  Courts  in  United  States 
V.  Avery,  Deady,  204. 

*  This  was  constitutional,  United  States  v.  Avery,  Deady,  204. 


V 


66  CENTRAL  ADMINISTRATION. 

followed  the  interpretation  of  the  first  Congress  on  this 
question  were  unquestionably  the  reason  why  the 
tenure-of-office  acts  were  finally  repealed.  From  this 
power  of  removal  has  been  evolved  the  President's 
power  of  direction  and  supervision  over  the  entire 
national  administration.  To  it  is  due  the  recognition 
of  the  possession  by  the  President  of  the  administrative 
power. 

3.  Power  of  direction. — The  power  of  direction  and 
control  over  the  administration  through  which  the 
President  has  become  the  chief  of  administration  is 
hardly  recognized  in  the  constitution.  The  only  pro- 
vision from  which  it  might  be  derived  is  that  which 
permits  him  to  "  require  the  opinion  in  writing  of  the 
principal  officer  in  each  of  the  executive  departments 
upon  any  subject  relating  to  the  duties  of  their  respec- 
tive offices."  ^  But  perusal  of  the  early  acts  of  Con- 
gress organizing  the  administrative  system  will  show 
that  the  first  Congress  did  not  have  the  idea  that  the 
President  had  any  power  of  direction  over  any  matters 
not  political  in  character,  while  the  conception  of  the 
executive  power  possessed  by  the  statesmen  of  the 
time,  as  seen  from  the  examples  which  have  been 
adduced,  goes  to  corroborate  this  position.  The  acts  of 
Congress  organizing  the  departments  of  foreign  affairs 
and  war  did,  it  is  true,  expressly  give  the  President  the 
power  of  directing  the  principal  officers  of  these  depart- 
ments how  they  should  perform  their  duties,  but  these 
were  departments  which  were  of  a  political  character. 
But  the  act  organizing  the  treasury  department  ^  con- 
tains no  reference  to  any  presidential  power  of  direction. 
It  simply  says  that  the  secretary  of  the  treasury  shall 

*  Art.  ii.,  sec.  ii.,  p.  i.  ^  Sept.  2,  1789. 


HISTORY  OF  THE  EXECUTIVE.  67 

generally  perform  all  such  services  relative  to  the 
finances  as  he  shall  be  directed  to  perform ;  and  the 
context  shows  that  reference  is  made  to  the  direction 
of  Congress  and  not  to  that  of  the  President.  The 
debates  in  Congress  substantiate  this  view.  Further, 
the  fact  that  the  secretary  of  the  treasury,  different 
from  the  other  secretaries,  was  to  make  his  annual 
report,  not  to  the  President,  but  to  Congress,  shbws 
that  Congress  intended,  after  the  manner  of  the  time, 
to  keep  the  finances  under  its  own  supervision.  The 
administration  of  the  finances  which,  as  has  been  shown, 
was  really  almost  the  only  non-political  branch  attended 
to  by  the  central  government  of  the  commonwealths 
served  the  men  of  those  times  as  a  model  for  the  other 
purely  administrative  branches.  Thus  the  post-office 
was  organized  at  first  in  such  a  way  as  to  remove  it 
completely  from  the  control  of  the  President.  The 
appointment  of  all  officers  in  the  post-office  was  given 
to  the  postmaster-general,  while  the  law  which  finally 
organized  the  department  in  1825  had  nothing  whatever 
to  say  about  presidential  control  or  direction.  The 
original  absence  of  this  power  of  direction  is  commented 
upon  by  one  of  the  United  States  courts.  The  court 
says ' : 

The  legislature  may  prescribe  the  duties  of  the  office  at  the 
time  of  its  creation  or  from  time  to  time,  as  circumstances  may- 
require.  If  these  duties  are  absolute  and  specific,  and  not  by  law 
made  subject  to  the  control  or  discretion  of  any  superior  officer 
who  is  by  law  especially  authorized  to  direct  how  those  duties  are 
to  be  performed,  the  officer  whose  duties  are  thus  prescribed  by 
law  is  bound  to  execute  them  according  to  his  own  judgment. 
That  judgment   cannot    lawfully  be   controlled  by   any   other 

^  United  States  v.  Kendall,  5  Cranch,  C.  C,  163,  272. 


/^ 


68  CENTRAL  ADMINISTRATION, 

person  ...  As  the  head  of  an  executive  department  he  is 
bound,  when  required  by  the  President,  to  give  his  opinion  in 
writing  upon  any  subject  relating  to  the  duties  of  his  office.  The 
President,  in  the  execution  of  his  duties  to  see  that  the  laws 
be  faithfully  executed,  is  bound  to  see  that  the  Postmaster-Gen- 
eral discharges  "  faithfully  "  the  duties  assigned  by  law  ;  but  this 
does  not  authorize  the  President  to  direct  him  how  he  shall  dis- 
charge them. 

The  court  admits,  however,  that  the  President  might 
remove  the  postmaster-general  from  office,  and  it  is 
from  this  power  of  removal  that  we  must  derive  any 
power  that  the  President  has  to  direct  and  control  the 
acts  of  officials  in  those  departments  where  the  law  has 
not  expressly  provided  for  the  direction  and  control  of 
the  President.  So  much  force  did  this  power  of 
removal  have  that  in  1855,  only  twenty  years  after  the 
decision  that  has  been  cited  was  made,  we  find  in  an 
opinion  of  Mr.  Cushing,  the  attorney-general,  the 
following  recognition  of  the  power  of  direction  of  the 
President.' 

I  think  ,  .  .  the  general  rule  to  be  .  .  .  that  the 
head  of  department  is  subject  to  the  direction  of  the  President. 
[This  was  said  in  relation  to  duties  imposed  by  statute  upon 
a  head  of  department.]  I  hold  that  no  head  of  a  department 
can  lawfully  perform  an  official  act  against  the  will  of  the  Presi- 
dent ;  and  that  will  is  by  the  constitution  to  govern  the  per- 
formance of  all  such  acts.  If  it  were  not  thus,  Congress  might 
by  statute  so  divide  and  transfer  the  executive  power  as  utterly 
to  subvert  the  government  and  change  it  into  a  parliamentary 
despotism  like  that  of  Venice  or  Great  Britain,  with  a  nominal 
executive  chief  or  President  utterly  powerless — whether  under 
the  name  of  Doge  or  King  or  President  would  then  be  of  little 
account  so  far  as  regards  the  question  of  the  maintenance  of  the 
constitution. 

'^  *  7  Opinions  of  the  Attorneys-General,  453,  470. 


HISTORY  OF  THE  EXECUTIVE.  69 

This  is,  of  course,  an  extreme  view,  and  it  is  prob- 
ably not  meant  by  it  that  the  President  has  any  dis- 
pensing power  by  which  he  might  relieve  an  officer  from 
obeying  a  positive  direction  of  law,  since  the  law,  when 
constitutional,  is  always  above  any  executive  order.'  But 
it  indicates,  at  any  rate,  the  drift  of  public  opinion  as 
to  what  was  the  position  of  the  President.  Indeed,  by 
this  time  it  was  pretty  well  recognized  that  the  President 
had  a  power  of  direction  over  all  of  the  departments 
regardless  of  the  fact  whether  the  law  organizing  the 
department  had  made  mention  of  such  a  power  or  not. 
This  may  be  seen  from  the  celebrated  United  States 
bank  episode  when  Andrew  Jackson  made  use  of  the 
power  of  direction,  together  with  the  power  of  removal 
on  which  it  is  necessarily  based,  to  force  the  secretary 
of  the  treasury,  notwithstanding  the  semi-independent 
position  in  which  the  first  Congress  attempted  to  place 
him,  to  vrithdraw  the  national  deposit  from  the  bank. 
This  was  done  in  spite  of  the  disapproval  of  Congress, 
and  no  serious  attempt  was  made  to  condemn  his  action.' 
The  effect  of  giving  to  the  President  these  powers  of 
removal  and  direction  has  been  to  give  him  the  admin- 
istrative power,  and  to  make  him  the  chief  of  adminis- 
tration. The  result  of  our  national  development  has 
been  a  great  enlargement  of  the  American  conception 
of  the  executive  povrer  as  exemplified  in  the  office  of 
the  President.  The  executive  power  in  the  United 
States,  so  far  as  the  national  government  is  concerned, 
embraces  both  the  powers  of  which  it  may  in  theory 


*  Kendall  v.  U.  S.,  12  Peters,  524. 

'  See  Riittiman,  op.  cit.,  I.,  170.  For  a  modem  illustration  of  the  presidential 
power  of  direction  see  F.  P.  Powers  on  the  Guilford  Miller  case  in  an  article      ^ 
on  "  Railroad  Indemnity- Lands  "  in  the  Fol.  Sci.  Qu.^  IV.,  452,  456. 


70  CENTRAL  ADMINISTRATION, 

be  composed,  and  tlie  chief  executive  authority  is  at 
the  same  time  the  political  and  the  administrative  chief 
of  the  government,  and  has  under  his  direction  and 
control  the  actions  of  all  the  officers  of  the  national 
government. 


CHAPTER  III. 

THE    ORGANIZATION    OP    THE    CHIEF    EXEOUTTVIS 
AUTHORITY   IN   THE   UNITED    STATES. 

/. —  The  President, 

It  may  be  said  that  the  executive  power  possessed 
by  the  President  of  the  United  States  embraces  first, 
the  political  power,  which  is  sometimes  exercised  by 
and  with  the  advice  and  consent  of  the  senate  acting 
as  an  administrative  council,  and  second,  the  adminis- 
trative power,  which  is  of  especial  interest  to  the 
student  of  administrative  law.  This  administrative 
power  consists  of  two  classes  of  minor  powers ;  first,  of 
the  powers  which  relate  to  the  personnel  of  the  ad- 
ministration. These  have  been  discussed  in  the  histori- 
cal treatment  of  the  President's  power.  At  the  present 
time  they  are  complete,  and  the  President  is  therefore 
the  head  of  the  national  administration,  with  power 
to  appoint  (with  consent  of  the  senate  for  most  im- 
portant officers),  remove,  and  direct  all  the  subordi- 
nates. In  the  second  place,  the  President  has  powers 
relative  to  the  administrative  services  themselves, 
material  rather  than  personal  powers.  That  is,  the 
President  has  the  right  himself  to  perform  a  series  of 
acts  in  the  different  branches  of  the  national  adminis- 
tration. 

71 


72  CENTRAL  ADMINISTRATION. 

1.  Administrative  powers. — These  powers  are  ta 
be  found  in  the  various  acts  of  Congress  relative  to  the 
different  services  by  which  Congress  has  conferred 
powers  and  imposed  duties  upon  the  President,  which 
he  is  obliged  to  exercise  and  perform  as  a  result  of  his 
constitutional  duty  to  see  that  the  laws  be  faithfully 
executed/  Principal  among  them  is  the  ordinance  power 
which  in  numerous  instances  Congress  has  delegated  to 
the  President,  and  which  the  President  may  exercise 
only  as  a  result  of  such  a  delegation.  In  the  exercise 
of  these  powers  it  is  nob  necessary  that  the  President 
act  personally  even  in  the  case  of  duties  whose  per- 
formance has  been  expressly  required  of  him  by  law.^ 

The  acts  by  means  of  which  the  President  performs 
his  duties  are  either  of  a  general  or  a  special  character. 
Those  of  a  general  character  are  either  regulations  or 
instructions,  the  difference  between  them  being  that 
the  former  bind  both  the  officials  of  the  government 
and  the  citizens  as  a  result  of  the  fact  that  Congress  has 
delegated  to  the  President  the  power  to  issue  them, 
while  the  latter  bind  only  the  officials  of  the  govern- 
ment, and  are  issued  by  the  President  as  a  result  of  his 
power  of  direction  and  control  over  the  entire  adminis- 
tration. Some  of  the  most  important  of  the  general 
regulations  issued  by  the  President  are  the  consular 
regulations  and  the  civil-service  rules.  But  the  most 
important  of  the  executive  regulations  are  issued,  not 

*  See  also  In  re  Neagle  135,  U.  S.,  i,  64,  68  ;  supra,  p.  64. 

'  Williamson  v.  The  United  States,  i  How,  290  ;  17  Peters,  144.  This  case  de- 
cided that  an  act  prohibiting  the  advance  of  money  to  disbursing  officers  except 
under  the  special  direction  of  the  President  did  not  require  of  the  President  the 
performance  of  this  direction  in  every  instance  under  his  ovi^n  hand.  For  politi- 
cal and  judicial  acts  the  courts  seem  to  require  the  personal  action  of  the  Presi- 
dent. See  Runkle  V.  U.  S.,  122  U.S.,  543,  557  ',  U.  S.  v.  Page,  137  U.  S.,  673^ 
678  ;  Ex  parte  Field,  5  Blatchford,  63. 


ORGANIZATION  OF  EXECUTIVE.  73 

by  the  President,  but  by  the  different  heads  of  depart- 
ments, though  the  President  is  regarded  as  responsible 
for  them  all  and  to  have  acted  through  the  heads  of 
departments.^ 

The  other  class  of  the  President's  acts  are  of  special 
and  not  general  application,  and  are  directions  or  or- 
ders issued  to  a  single  head  of  a  department  and  de- 
cisions in  those  few  cases  where  it  is  recognized  that 
the  President  has  the  power  of  deciding  appeals  from 
the  decisions  of  his  subordinates.  The  latter  power  of 
decision  on  appeal  is  not  generally  recognized  as  be- 
longing to  the  President.  Indeed  it  has  been  laid 
down  as  the  general  rule  that  the  President  has  no 
power  to  correct  by  his  own  official  act  the  errors  of 
judgment  of  incompetent  or  unfaithful  subordinates  ^ ; 
and  that  the  individual  has  no  right  of  appeal  from  the 
decision  of  a  head  of  a  department  to  the  President  ^ ; 
and  that  where  an  appeal  lies  it  can  go  no  further  than 
to  the  head  of  a  department.* 

The  only  case  where  an  appeal  lies  to  the  President 
is  where  the  question  to  be  decided  is  as  to  the  juris- 
diction of  the  officer  whose  decision  is  appealed  from. 
Here  the  appeal  seems  to  be  permitted.^ 

2.  Hemedies  against  the  action  of  the  President, — 
There  are,  it  may  be  said,  almost  no  remedies  against 
the  action  of  the  President.     The  President  is  neither 

*  Wilcox  V.  Jackson,  13  Peters,  498,  513  ;  U.  S.  v.  Eliason,  16  Id.,  291  ;  Con- 
fiscation Cases,  20  Wall.  92,  109  ;  U.  S.  v.  Farden,  99  U.  S.,  10,  19  ;  Wolsey 
V.  Chapman,  loi  U.  S.,  755. 

^  4  Opinions  of  the  Attorneys-General,  515;  but  see  the  Guilford  Miller  case. 
Supra,  p.  69. 

'9  Opinions,  462.  *  10  Ibid.,  526. 

'15  Ibid.,  94,  100.  This  opinion  was  given  in  1S76,  and  is  very  valuable,  as 
in  it  are  collected  and  reviewed  all  the  opinions  of  the  attorneys-general  on 
this  point. 


74  CENTRAL  ADMINISTRATION. 

civilly  nor  criminally  responsible  to  the  courts.^  Nor 
can  the  courts  review  his  acts  where  the  attempt 
will  bring  them  in  direct  conflict  with  him.^  The 
only  cases  where  the  courts  can  exercise  any  control 
over  the  President  are  those  in  which  a  regulation  or 
order  of  the  President  comes  up  before  them  for 
execution  when,  if  they  regard  it  as  an  act  in  excess 
of  the  President's  powers,  they  may  refuse  to  enforce 
and  declare  it  null  and  void.^  But  even  in  these  cases 
where  the  action  of  the  President  is  regarded  as  political 
in  its  nature  the  courts  will  refuse  to  interfere/ 

//. —  The  commonwealth  governor, 

1.  The  governor  a  political  officer, — The  originally 
political  character  of  the  governor  ^  has  tended  to  be- 
come more  prominent,  largely  on  account  of  the  grant 
to  him  of  the  limited  veto  power.  His  political  powers 
consist  in  the  first  place  of  military  powers,  which  are 
always  exercised  subject  to  the  limitations  contained  in 
the  United  States  constitution.  This  provides  that  the 
militia  of  the  several  commonwealths  shall  be  under 
the  command  of  the  President  when  in  the  actual  ser- 
vice of  the  United  States.^  These  military  powers 
consist  for  the  most  part  of  the  commandership  of  the 
commonwealth  militia  and  include  also  the  military 
administration  as  there  is  no  commonwealth  secretary 
of  war.7      This  fact  is  due  probably  to  the  possession 

^  Durand  v.  Hollis,  4  Blatchford,  451,  which  also  claims  irresponsibility  for  his 
subordinates  when  executing  orders  issued  in  the  discretion  of  the  President. 

^  Infra,  II.,  p.  208;  Miss.  v.  Johnson,  4  Wall,  475. 

'  The  Schooner  Orono,  I.  Gallison  C.  C,  137  ;  Ex  parte  Merryman,  9  Am- 
erican Law  Register,  524. 

*  Supra,  p.  34.  ®  Const.,  art.  ii.,  sec.  2,  par.  i. 

*  Supra,  p.  59.  '  Stimson,  American  Statute  Law,  p.  41,  sec.  202. 


ORGANIZATION  OF  EXECUTIVE,  75 

by  the  Englisli  crown,  at  the  time  the  office  of  gov- 
ernor was  established,  of  the  military  administration 
which  was  considered  a  part  of  the  royal  prerogative. 
In  several  of  the  commonwealths  the  governor  may 
not  act  personally  in  the  field  unless  advised  so  to  do 
by  a  resolution  of  the  legislature.^  As  commander-in- 
chief  he  has  very  commonly  the  power  to  call  out  the 
militia  in  case  of  insurrection,  invasion,  or  resistance  to 
the  execution  of  the  laws.^  In  some  cases  here  again 
this  right  is  subject  to  passage  of  a  resolution  to  that 
effect  by  the  legislature.  This  is  so  in  New  Hampshire, 
Massachusetts,  and  Tennessee  in  case  of  insurrection 
and  in  Texas  in  case  of  invasion.^ 

The  second  class  of  powers  possessed  by  the  gov- 
ernor are  to  be  found  in  the  powers  he  possesses  over 
the  actions  of  the  legislature.  Thus  the  governor  very 
generally  has  the  veto  power.  This  includes  in  many 
cases  the  power  to  veto  items  in  appropriation-bills 
and  usually  consists  in  the  power  to  demand  from  the 
legislature  a  reconsideration  of  the  objectionable  bill. 
On  the  reconsideration,  the  bill  may  be  passed  usually 
by  a  two-thirds  vote,  in  some  cases  a  three-fifths,  and 
finally  in  some  by  a  simple  majority.'^  The  governor 
also  has  the  power  to  adjourn  the  legislature  in  case  the 
two  houses  disagree  as  to  the  time  of  adjournment^ ; 
the  power  to  call  extra  sessions  of  the  legislature^ ;  and 
the  power  and  duty  to  send  to  the  legislature  mes- 
sages in  which  he  is  to  give  the  legislature  such  infor- 
mation as  to  the  condition  of  the  commonwealth,  and 


*  Alabama,  Kentucky,  Maryland,  and  Missouri.  Stimson,  op.  cit.  sec.  297. 
'  Stimson,  op.  cit.  sec.  298. 

^  Ibid.  » /3«V.,  sec.  278. 

*  IHd.,  sec.  305,  C.  *  IHd.,  sec.  277. 


76  CENTRAL  ADMINISTRATION. 

to  recommend  such  measures  as  he  deems  proper/  In 
the  third  place  the  governor  has  very  generally  the 
pov^er  to  grant  pardons,  reprieves,  and  commutations 
of  sentences  and  may  remit  fines  and  forfeitures.^  In 
some  instances  treason  and  conviction  on  impeachment 
are  excepted  from  his  pardoning  power,^  v^hile  in  certain 
of  the  States  the  power  in  all  cases  is  conditioned 
upon  obtaining  the  consent  of  the  council  (Massa- 
chusetts, Maine,  and  New  Hampshire),  or  the  senate 
(Rhode  Island),  or  that  of  the  judges  of  the  supreme 
court  and  the  attorney-general  or  a  majority  of  them 
(Nevada  and  Florida),  or  of  a  board  of  pardons  con- 
sisting of  "  state  officers  "*  (Pennsylvania).  Finally  the 
governor  has  in  some  cases  the  power  to  proclaim  in 
accordance  with  the  law  the  time  of  general  elections. 
This  power  is  often  possessed  by  the  secretary  of  state.^ 
2.  Power  of  appointment — While  the  political 
powers  of  the  governor  have  increased,  his  administra- 
tive powers  have  decreased.  First  among  these  is  the 
power  of  appointment.  This  power  was  originally 
rather  greater  in  New  York  than  elsewhere.  Here  the 
governor  had  the  power  to  appoint  most  officers  in  the 
commonwealth,  but  was  subject  in  the  exercise  of  the 
power  to  the  necessity  of  obtaining  the  consent  of  the 
council  of  appointment  formed  of  members  of  the  sen- 
ate elected  by  the  assembly.^  In  1801,  however,  the 
power  was  given  to  each  member  of  the  council  to 
nominate  for  appointment.^  The  diffusion  of  respon- 
sibility resulting  from  this  amendment  at  a  time  when 
the  patronage  of  the  central  government  of  the  com- 

*  Ibid.,  sec.  280.  *  Ibid.,  sec.  160. 

*  Ibid.,  sees.  160,  163,  164.         ^  See  Nebraska  Compiled  Statutes,  1889,  p.  453. 

*  Ibid.,  sec.  161.  *  Supra,  p.  56. 

'  Amendment  V.  to  the  first  constitution. 


ORGANIZATION  OF  EXECUTIVE.  77 

mon wealth  was  very  large  ^  resulted  in  great  evils ;  and 
the  demand  began  to  be  made  that  the  patronage  of 
the  central  government  of  the  commonwealth  be  les- 
sened. This  was  done  by  the  constitution  of  1821, 
which  abolished  the  council  of  appointment  and  pro- 
vided that  the  heads  of  the  executive  departments 
should  be  appointed  by  the  legislature  as  had  been  the 
rule  from  the  beginning  in  Massachusetts  and  Vir- 
ginia. Most  of  the  officers  of  the  commonwealth  in 
the  localities  were  made  elective,  and  in  the  few  cases 
in  which  the  power  of  appointment  was  left  with  the 
governor  its  exercise  was  conditioned  by  the  necessity 
of  obtaining  the  consent  of  the  senate.  The  consti- 
tution of  1846  still  further  lessened  the  power  of  the 
governor  to  appoint  officers ;  but  since  that  time  there 
has  been  a  reaction  in  favor  of  increasing  this  power. 
Amendments  to  the  constitution  and  statutes,  have 
provided  new  officers  unknown  to  the  original  consti- 
tution, and  these  officers  are  for  the  most  part  appointed 
by  the  governor  and  senate.  Finally,  the  general  power 
has  been  given  to  the  governor  to  appoint  to  any 
position  for  which  no  other  method  of  appointment  or 
election  has  been  provided,^  and  to  fill  vacancies  except 
in  the  principal  "state  offices,"  which  are  filled  by 
the  legislature.^  The  same  development  has  been  going 
on  in  the  other  commonwealths  with  the  result  that 
the  governor's  power  of  appointment  at  the  present 
time  is  as  follows : 

The  governor  has  the  power  with  the  consent  of  the 
council  or  senate  to  appoint  the  less  important  "  state 

*  In  1821  the  number  of  civil  appointees  was  7,000,  that  of  military  ap- 
pointees, 8,000.     See  schedule  in  Clark's  Debates  of  the  Convention  of  1821. 

«  N.  Y.  L,  1892,  c.  681,  sec.  6. 

*  Ibid.,  sees.  30,  31. 


78  CENTRAL  ADMINISTRATION, 

officers  "  *  and  almost  never  any  of  the  local  officers ; 
to  fill  many  vacancies  until  the  expiration  of  the  term 
or  the  next  election,  and  to  fill  all  offices  for  which 
some  other  method  of  filling  is  not  provided.  This 
power  of  appointment  is  generally  based  on  statute,  and 
therefore  may  be  decreased  at  any  time  by  the  legisla- 
ture. But  in  some  cases  it  is  based  on  the  constitution,^ 
when  of  course  the  legislature  would  have  no  such  power. 
In  a  few  commonwealths  it  is  provided  that  the  term 
of  the  officers  to  be  appointed  by  the  governor  and  of 
those  to  be  elected  by  the  people  shall  expire  at  the 
same  time  that  the  term  of  the  governor  expires,  so 
that  the  new  governor  may  fill  the  offices  to  his 
satisfaction  at  the  beginning  of  the  term,  and  so  that 
there  will  be  harmony  in  general  policy  between  the 
governor  and  the  elected  officers,  who  it  is  supposed 
will  belong  to  the  same  party  as  the  governor.^  But 
this  is  quite  rare. 

3.  Power  of  removal. — In  New  York,  where  the  ad- 
ministrative powers  of  the  governor  were  rather  greater 
than  elsewhere,  it  was  provided  by  the  first  constitu- 
tion that  the  governor  had,  subject  to  the  necessity  of 
obtaining  the  consent  of  the  council  of  appointment, 
the  power  to  remove  almost  every  important  officer  in 
the  commonwealth  government  not  judicial  in  character 
and  not  purely  local.*  It  is  said  that  "  use  was  made 
of  this  power  to  produce  an  entire  change  of  officers 
throughout  the  state  from  the  highest  to  the  lowest, 
at  any  rate  in  all  those  cases  where  the  immediate  pre- 
decessors of  the  council  [of  appointment]  had  made  an 

*  But  see  Florida  where  he  appoints  almost  all.  See  Const.  1881,  art.  v., 
sec.  17. 

'  See  Stimson,  op.  cii,,  sec.  202,  B. 

^  See  Kentucky,  General  Statutes,  sees.  2,  25,  28  ;  Constitution  of  Nebraska, 
v.,  sec.  I  ;  Florida  Const.  1881,  v.,  sec.  17.  *  Const.,  art.  xxvii. 


ORGANIZATION  OF  EXECUTIVE.  79 

appointment."^  This  gross  misuse  of  the  power  of 
removal  was  one  of  the  reasons  why  the  council  of 
appointment  was  abolished  in  1821.  With  its  abo- 
lition the  governor's  power  of  removal  was  greatly 
diminished.  At  first  the  governor  lost  practically  all 
power  of  removal,  but  later  a  certain  power  of  removal 
was  restored  to  him  ;  and  at  the  present  time  the  power 
of  removal  of  the  commonwealth  governor  is  as  follows : 

This  power  is  as  a  rule  confined  to  the  officers  whom 
the  governor  appoints,  though  in  New  York  he  is  per- 
mitted to  remove  all  the  important  "  state  officers  "  ^ ; 
and  local  officers  are  seldom  removable  by  the  gover- 
nor except  in  New  York  where  the  power  to  remove 
local  officers  is  quite  large.*  In  almost  all  cases,  how- 
ever, the  exercise  of  this  power  is  conditioned  upon 
obtaining  the  consent  of  the  council  or  senate  and  upon 
the  finding  of  cause  for  removal,  which  cause  is  usually 
either  malfeasance  in  office  or  neglect  of  duty,  but  in  a 
few  cases  may  consist  in  incompetency.*  Where  cause 
is  the  ground  of  removal,  in  accordance  with  the  general 
principles  of  the  administrative  law  of  the  United 
States  the  person  to  be  removed  must  be  given  a  hear- 
ing.5  Sometimes  pending  the  removal  proceedings  the 
governor  has  by  statute  the  right  to  suspend  the 
officer.^  As  in  the  case  of  the  power  of  appointment 
the  power  of  removal  is  based  sometimes  on  the  consti- 
tution, indeed  generally  so,  but  also  in  some  cases  on 
the  statutes  when  the  legislature  may  take  it  away. 

4.  Power  of  direction, — The  governor's  powers  of 

*  Hammond,  History  of  Political  Parties  in  the  State  of  New  York,  I.,  289. 

*  Const.,  art.  v.,  sees.  3,  4  ;    art.  x.,   sees,  i,  3,  and   10  ;    L,,  1892,  c.  681, 
sees.  22,  23  ;  cf.  Stimson,  op.  cit.,  sec.  266. 

*  L.,  1892,  c.  081,  see.  23. 

*  Ibid.,  sees.  22  and  23  ;  Stimson,  op.  cit.,  sec.  266. 

*  Infra,  II.,  p.  99.  *  See  Indiana  Rev.  Stats.,  1881,  sec.  5643. 


8o  CENTRAL  ADMINISTRATION. 

direction  and  control  over  the  administrative  officers 
are  very  small  and  must  of  necessity  be  so,  so  long  as 
the  power  of  removal  is  so  weak.  Further,  the  statutes 
seldom  give  him  expressly  any  such  power.  The  only 
general  exception  to  this  rule  seems  to  be  in  the  case  of 
the  attorney -general  who  is  regarded  as  the  legal  adviser 
of  the  governor  and  as  such  subject  to  his  direction.^ 
Further,  it  is  very  generally  provided  that  the  governor 
may  demand  information  from  the  various  officers,  who 
must  also  report  to  him.^ 

5.  The  governor's  power  over  the  ackninistrative  ser- 
vices.— In  addition  to  these  rather  limited  powers  over 
the  personnel  of  the  commonwealth  administration  the 
governor  has  also  a  few  but  rather  unimportant  powers 
relative  to  the  administrative  services.  As  a  general 
thing,  however,  these  services  are  managed  by  the 
various  ''  state  officers  "  independently  of  the  governor. 
Among  the  governor's  powers  of  this  character  may  be 
mentioned  the  ordinance  power.  This,  like  the  ordi- 
nance power  of  the  President,  is  a  delegated  ordinance 
power;  but  different  from  the  national  Congress,  the 
commonwealth  legislature  has  not  often  delegated  to  the 
governor  any  ordinance  power.  Further,  the  governor 
has  in  several  of  the  commonwealths  comparatively  ex- 
tended financial  powers.  Thus  in  seven  of  the  com- 
monwealths ^  he  is  to  draw  up  estimates  of  the  amount 
of  money  to  be  raised  by  taxation  for  the  purposes  of 
the  government ;  in  several  commonwealths  also  all 
money  is  to  be  paid  out  of  the  treasury  on  his  order  * ; 

*  See,  «?.  ^..California  Political  Code,   sec.   380,  paragraphs  5,   6,  and  7, 
Georgia  Code,  sec.  367  ;  Indiana  Rev.  Stats.,  sec.  5659. 

^  Stimson,  op.  cit.,  sec.  281. 

2  Illinois,  Nebraska,  West  Virginia,  Missouri,  Texas,  Colorado,  and  Alabama. 
Stimson,  op.cit.,  sec.  280. 

*  E.  g.  see  Code  of  Georgia,  1882,  sec.  76. 


ORGANIZATION  OF  EXECUTIVE.  8i 

and  finally  in  a  number  he  is  to  examine  the  accounts 
of  financial  officers  at  stated  times  and  sometimes  unex- 
pectedly.^ 

6.  General  position  of  the  governor,  —  It  will  be 
noticed  from  this  description  of  the  governor's  powers 
how  different  his  position  in  the  commonwealth  admin- 
istration is  from  that  of  the  President  in  the  national 
administration.  Originally  occupying  about  the  same 
relative  position,  the  governor  has  been  stripped  of  his 
administrative  powers,  and  has  been  more  and  more 
confined  to  the  exercise  of  political  powers,  while 
the  President  has  been  gaining  more  and  more  ad- 
ministrative power,  until  at  the  present  time  he 
makes  or  unmakes  the  administration  of  the  United 
States.  It  has  been  impossible  for  the  governor  to 
become  the  head  of  the  commonwealth  adminis- 
tration, because  the  people  of  the  commonwealth 
have  decided  that  the  governor  shall  be  in  the  main  a 
political  officer.  They  have  lessened  his  power  of  ap- 
pointment, they  have  all  but  destroyed  his  power  of 
removal.  He  has  thus  been  unable  to  develop  any 
power  of  direction.  The  governor's  office  has  been 
deprived  of  all  means  of  administrative  development.^ 
He  is  now  more  than  he  ever  was  a  political  officer. 
His  political  powers  indeed  have  tended  to  increase. 
This  is  especially  true  of  the  veto  power,  which  now 
extends  to  items  of  bills  appropriating  money.  But 
because  the  governor  has  thus  been  confined  to  the 

*  See  Virginia  Code,  sec.  238  ;  Colorado  General  Statutes,  1883,  sec.  1361 ; 
Iowa,  McLain's  Annotated  Statutes,  1882,  sees.  759,  763  ;  Kansas,  Dassler's 
Compiled  Laws,  sec.  5964. 

'  The  remark  of  one  of  the  commonwealth  governors  that  all  the  power  he 
had  was  "  to  pardon  criminals  and  appoint  notaries  "  is  indicative  of  the  gov- 
ernor's position  at  the  present  time. 

6 


82  CENTRAL  ADMINISTRATION. 

exercise  of  political  powers  his  influence  upon  the  wel~ 
fare  of  the  commonwealth  must  not  be  underestimated. 
He  is  still  a  very  important  officer.  His  veto  power 
gives  him  a  vast  power  over  legislation,  while  the  little 
power  of  removal  which  he  possesses  often  enables  him 
to  punish  summarily  any  gross  malconduct  on  the  part 
of  many  of  the  important  administrative  officers  of  the 
commonwealth  both  at  the  centre  and  in  the  localities. 
7.  Remedies  against  Ms  action. — The  remedies 
against  the  acts  of  the  governor  are  about  the  same  a& 
the  remedies  provided  against  the  action  of  the  Presi- 
dent, though  perhaps  a  little  more  effectual  on  account 
of  the  fact  that  the  courts  are  not  so  careful  of  avoid- 
ing conflict  with  the  commonwealth  executive.  Thus, 
while  the  better  rule  would  seem  to  be  that  the  courts 
will  not  attempt  to  control  his  action  by  attempting  to 
exercise  a  direct  restraint  over  him,^  still  there  are  cases 
in  which  they  have  not  hesitated  to  issue  direct  com- 
mands to  him,  whose  disobedience  would,  in  accordance 
with  the  usual  rules  of  law,  result  in  his  commitment 
for  contempt  of  court ;  and  they  have  had  little  com- 
punction about  declaring  an  act  of  the  governor,  in 
which  it  would  appear  that  he  had  considerable  discre- 
tion, null  and  void." 

*  High,  Extraordinary  Legal  Remedies,  2d  Ed.,  sees.  Ii8,  136  ;  People  v.. 
Hill,  13  N.  Y.  Supplement,  186 ;  N.  V.  Law  Journal,  April  13,  1891  ;  af- 
firmed, but  on  different  grounds,  in  126  N.  Y.,  497. 

^  People  V.  Curtis,  50  N.  Y.,  321,  where  it  was  decided  that  a  warrant  of 
extradition  made  by  the  governor  in  pursuance  of  an  unconstitutional  law  was, 
void;  People  v.  Brady,  56  N.  Y.,  182,  where  the  court  went  back  of  a  war- 
rant of  extradition  issued  by  the  governor,  and  decided  that  the  affidavits  on 
which  the  warrant  was  issued  were  not  sufficient  to  justify  the  inference  that  a. 
legal  crime  had  been  committed;  People  v.  Piatt,  50  Hun.,  454,  where  the 
court  decided  that  the  act  of  the  governor  appointing  an  officer  was  without 
jurisdiction,  on  the  ground  that  the  person  appointed  was  not  qualified.  See 
also  Dullam  v.  Willson,  53  Mich.,  392. 


CHAPTEE  IV. 

THE   EXECUTIVE   POWER   AND    AUTHORITY   IN   FRANCE. 

/. — General  position. 

The  office  of  the  chief  executive  is  filled  in  France  by 
the  President,  who  is  elected  by  the  legislature  acting 
in  national  assembly.  His  position  is,  from  the  adminis- 
trative point  of  view,  similar  to  that  of  the  President 
of  the  United  States,  but  somewhat  more  influential, 
on  account  of  the  existence  in  France  of  many  mon- 
archical traditions  and  on  account  of  the  existence  also 
for  so  long  a  time  of  a  hierarchically  organized  admin- 
istration, at  whose  head  it  is  well  recognized  that  the 
President  stands.  While  from  the  administrative 
point  of  view  his  position  is  somewhat  more  important,  *^ 
from  the  political  point  of  view  his  position  is  consider- 
ably less  important  than  that  of  the  President  of  the 
United  States,  particularly  on'  account  "of  the  absence 
of  any  veto  power  and  on  account  of  the  adoption  of 
the  principle  of  the  responsibility  of  his  ministers  to 
the  legislature. 

//. — A  dminstrative  powers. 

1.  Power  of  appoinPment — His  administrative 
powers  relative  to  the  personnel  of  the  official  service 
are  to  be  found  in  the  first  place  in  a  wide  power  of 

83 


84  CENTRAL  ADMINISTRATION. 

appointment.  He  appoints  without  any  limitations 
whatever  to  most  of  the  important  positions  in  the 
administration,  the  only  exception  to  this  rule  being 
that  his  ministers  must  have  the  confidence  of  the 
legislature,  which  by  precedent  has  come  to  mean  the 
confidence  of  the  chamber  of  deputies.'  The  President 
has  the  power  of  appointing  not  only  the  agents  of  the 
central  administration,  but  also  most  of  the  ofiicers 
acting  in  the  localities,  such  as  the  prefects  in  the 
departments,  the  under-prefects  in  the  districts,  and 
the  treasurers  of  the  departments.  Really  the  only 
important  administrative  officer  in  the  localities  not 
appointed  by  the  President  is  the  mayor  in  the  com- 
mune, who  since  1882  has  been  appointed  by  the 
municipal  council.'  Formerly  the  power  of  appoint- 
ment of  the  chief  executive  was  much  greater  than  now, 
the  members  of  all  the  deliberating  bodies  in  the 
localities  being  designated  by  the  central  government. 
These  are  now  elected  by  the  people  of  the  respective 
localities.  In  addition  to  appointing  the  officers  of  the 
active  administration,  the  President  also  appoints  the 
members  of  the  administrative  councils  and  courts,  viz,^ 
the  council  of  state,^  and  the  council  of  the  prefecture,* 
and  the  members  of  all  the  ordinary  courts.^ 

2.  Powers  of  removal  and  direction. — In  the  second 
place  the  President  has  in  the  case  of  purely  adminis- 
trative officers  an  unlimited  power  of  removal  which 
is  even  more  extensive  than  his  power  of  appointment 
since  he  may  remove  not  only  all  officers  whom  he  has 

*  L.,  Feb.  25,  1875,  art.  3,  Burgess,  op.  cit.,  I.,  302. 
«  L.,  March  28,  1882. 

»  L.,  Feb.  25,  1875. 

*  L.,  June  21,  1875. 
'L.,  Feb.  25,  1875. 


EXECUTIVE  POWER  IN  FRANCE,  85 

appointed/  but  also  may  remove  the  mayors  of  the 
communes,'^  and  may  dissolve  the  local  delibergUiive  and 
legislative  bodies,  such  as  the  general  Council  of  the 
department  and  the  municipal  councils  of  the  com- 
munes.^ In  the  third  place,  the  President's  power  of 
direction  is  as  great  as  his  powers  of  appointment  and 
removal.  It  is,  however,  the  result  of  tradition  rather 
than  of  positive  law.  The  administration  has  been  so 
long  hierarchically  organized  that  the  idea  that  the 
President  is  the  head  of  the  administration,  subject 
always  to  the  principle  of  ministerial  responsibility  to 
the  legislature,  is  universally  recognized.  Further,  the 
power  of  removal  is  so  great  that  the  power  of  direc- 
tion has  the  greatest  possible  administrative  sanction. 

3.  Ths  ordinance  power, — Among  the  President's 
powers  which  relate  not  so  much  to  the  personnel  of 
the  service  as  to  the  actual  conduct  of  the  administra« 
tive  business  of  the  government  may  be  mentioned  the 
ordinance  power.  It  is  a  well  recognized  principle  of 
French  law  that  the  President  has  a  general  power  to 
supplement  the  law  by  means  of  ordinances,  even 
where  the  legislature  has  not  expressly  delegated  any 
such  power  to  him.  The  ordinances  are  known  to  the 
French  law  as  decrees.  This  power  of  supplementary 
ordinance  results  from  the  constitutional  law,  ♦  which 
imposes  upon  the  President  the  duty  of  watching  over 
and  securing  the  execution  of  the  laws.  ^  The  reason 
why  such  an  interpretation  should  be  put  upon  this 
clause,  when  in  the  United  States  a  similar  clause  has 

*  Aucoc,  <^.  cit.,  I.,  p.  106. 

•  L.,  April  5,  1884,  arts.  85,  86. 

»  L.,  August  10,  1871,  art.  35  ;  L.,  April  5,  1884,  art.  43. 

*L.,  February  25,  1875. 

'Aucoc,  op.  cit.,  I.,  108 ;  Ducrocq,  op.  cit.,  I.,  57  ;  Boeuf,  op.  cit.,  14. 

(  UNIVERSITY  J 


86  CENTRAL  ADMINISTRATION. 

received  such  a  different  interpretation,  is  to  be  found 
in  the  monarchical  traditions  of  the  country.  It  results 
from  the  old  idea  that  the  residuary  governmental 
power  of  the  land  is  vested  in  the  chief  executive,  who 
may  therefore  issue  ordinances,  which  supplement 
existing  laws,  and  do  not  conflict  with  either  their 
letter  or  their  spirit.  But  besides  this  power  of  sup- 
plementary ordinance  many  statutes  have  expressly" 
delegated  to  the  President  the  power  to  issue  decrees 
which  regulate  in  detail  such  points  as  the  legislature 
has  not  seen  fit  to  regulate  itself.  All  decrees  issued 
in  either  of  these  ways  have  the  same  characteristics 
as  the  laws  which  they  supplement.  They  are  binding 
upon  individuals  who  in  case  they  violate  them  may 
be  subjected  to  the  penalties  provided  by  law.  * 
Certain  of  these  decrees  are  called  decrees  of  public 
administration,  viz.^  those  which  the  President  issues 
as  a  result  of  a  delegation  of  the  ordinance  power  of 
the  legislature.  In  the  issue  of  these  decrees  of  public 
administration  the  President  has,  as  a  rule,  wider 
powers  than  in  the  case  of  the  supplementary  ordi- 
nances. For  this  reason  it  is  a  general  principle  of  the 
French  law  that  the  President  shall  before  issuing  them 
ask  the  advice  of  the  council  of  state.  \  Wherever  the 
law  requires  such  a  formality,  its  non-observance  would 
make  the  decree  void,  though  at  the  same  time  it  is  to 
be  noticed  that  the  President  is  never  bound  to  act  in 
accordance  with  the  advice  which  has  been  given  by 
the  council  of  state.  This  is  a  peculiarity  which  is 
characteristic  of  the  entire  French  administrative  law. 
The  purpose  of  the  provision  is  to  ensure  sufficient 

^  See  Art.  471,  No.  15  of  the  Penal  Code. 

^  L.,  May  24,  1872,  arts.  8  and  13  ;  Ducrocq,  op.  cit.,  I.,  57. 


EXECUTIVE  POWER  IN  FRANCE.  87 

deliberation  on  important  subjects,  and  at  the  same  \ 
time  a  concentrated  responsibility  for  the  action  taken, 
which  is  always  regarded  as  the  action  of  the  officer 
issuing  the  decree  and  not  that  of  the  council  whose 
advice  is  asked.  To  act  is  the  function  of  one,  to  de-  , 
liberate  that  of  several,  is  the  fundamental  principle  of 
French  administration. 

Besides  the  general  acts  or  ordinances  which  the 
President  has  the  power  to  issue,  he  has  often  the 
power  to  issue  a  decree  which  affects  only  some  one 
particular  individual  case.  Thus  he  opens  by  means 
of  a  decree  supplementary  appropriations,^  declares 
that  certain  public  works  are  of  public  utility,  which  ' 
means  that  the  right  of  eminent  domain  may  be  exer- 
cised ^ ;  exercises  by  .special  decree  the  administrative 
control  which  is  given  to  the  central  government  over 
the  actions  of  certain  local  corporations.  This  power 
is  not  nearly  so  large  now  as  it  formerly  was.^  The 
President  also  grants  by  special  decree  certain  charters 
and  concessions,  e.  g.,  for  railways  of  minor  importance 
and  for  mines.  ^  The  President  must  always  exercise 
these  powers  through  one  of  his  ministers,  who  must 
countersign  his  act  and  thus  becomes  responsible  for  it 
to  the  legislature.  ^ 

4.  Remedies  against  Ms  action. — The  remedies  open 
to  the  individual  against  the  acts  of  the  President  are 
much  greater  than  under  the  American  system.  The 
control  of  the  courts  over  his  penal  ordinances  is  the 
same  as  in  the  United  States.     That  is,  if  any  one  is 

^  L.,  September  16,  1871,  arts.  31  and  32. 
'^L.,  July  27,  1870. 

*  Infra,  p.  271. 

"*  Boeuf,  op.  cit.,  15. 

*  L.,  February  25,  1875,  art.  3. 


88  CENTRAL  ADMINISTRATION. 

prosecuted  before  the  courts  for  the  violation  of  an 
ordinance  or  decree  of  the  President,  the  courts  may 
refuse  to  convict  on  the  ground  that  the  decree  is  not 
legally  made,  since  the  penal  code  gives  the  courts  the 
power  to  punish  violations  of  only  ordinances  which 
are  legally  made.*  Further,  any  one  may  appeal  from 
any  act  of  the  President,  not  of  a  political  character, 
directly  to  the  council  of  state,  which  may  annul  it  if 
it  has  been  done  in  excess  of  the  powers  possessed  by 
the  President  or  in  violation  of  the  law,  and  may  amend 
and  modify  it  so  as  to  render  justice  in  case  it  violates 
an  individual  right.  Finally,  any  one  who  deems  him- 
self  aggrieved  by  an  act  of  the  President  may  petition 
the  legislature  which  may  hold  the  minister  responsible 
who  has  countersigned  it.^ 

»  Penal  Code,  Art.  471,  No.  15  ;  Boeuf,<^  «'/.,  17. 
»  Aucoc,  op,  cH,y  I.,  113. 


CHAPTER  V. 

THE    EXECUTIVE    POWER    AND    AUTHORITY    IN    GERMANY. 

/. — The  prince. 

1.  An  authority  of  general  powers, — In  Germany, 
as  in  France  and  for  the  same  reason,  the  conception 
of  the  executive  power  and  of  the  position  of  the  chief 
executive  authority,  as  exemplified  in  the  prince,  is 
much  broader  than  it  is  in  the  United  States.  Conse- 
quently, the  chief  executive  authority  is  more  impor- 
tant, certainly  from  the  administrative  point  of  view, 
than  in  the  United  States.  Monarchical  traditions  have 
led  to  the  adoption  of  the  theory  that  the  entire  gov- 
ernmental power  of  the  land  is  vested  in  the  prince 
who  is  quite  irresponsible.'  But  in  order  that  such  a 
theory  may  not  lead  in  its  application  to  absolute  gov- 
ernment, a  corollary  of  the  principle  adds,  that  the  prince 
may  act  only  in  a  certain  way,  and  that  in  order  that 
he  act  even  in  that  way  some  one  shall  be  responsible 
for  each  one  of  his  acts.'^  The  constitution  therefore 
places  important  limitations  on  his  action,  but  where  no 
such  limitation  exists  the  prince  is  recognized  as  having 
the  governmental  power.  The  prince  is,  different  from 
the  American  President  and  governor,  not  an  authority 

*  Schulze,  Deutsckes  Staatsrecht,  I.,  187. 

'  Ibid.^  Meyer,  Deutsches  Staatsrecht,  186,  et  seq. 

89 


90  CENTRAL  ADMINISTRATION. 

of  enumerated  powers,  but  is  the  possessor  of  the 
residuum  of  governmental  power  in  the  partition  of 
the'  governmental  power  made  by  the  constitution.  He 
may  therefore  exercise  the  governmental  power  in 
such  instances  and  in  such  ways  as  best  suit  him, 
provided  that  the  constitution  has  not  given  the  exer- 
cise of  the  power  to  some  other  authority  and  has  not 
designated  the  way  in  which  the  power  shall  be  exer- 
cised. The  express  limitations  upon  the  power  of  the 
prince  become  thus  of  the  same  importance  as  the 
enumerated  powers  of  the  United  States  President, 
and  the  prince  possesses,  even  in  the  absence  of  special 
grant,  provided  that  the  constitution  has  not  taken 
such  power  from  him,  both  the  political  and  the  ad- 
ministrative powers. 

2.  Limitations  of  his  power. — The  constitutional 
limitations  of  the  power  of  the  prince  belong,  it  is  true, 
rather  to  the  domain  of  constitutional  than  to  that  of 
administrative  law,  but  they  must  be  considered  briefly 
in  order  to  reach  a  clear  understanding  of  the  position 
in  the  administrative  system  of  the  German  prince. 

In  the  first  place,  by  the  princely  constitutions  the 
consent  of  the  legislative  body  is  necessary  for  the  valid- 
ity of  all  legislative  acts  affecting  the  freedom  of  the 
person  and  property  ^ ;  for  the  fixing  of  the  budget  of 
the  expenses  and  receipts  and  the  levying  of  taxes."^ 
The  judicial  power,  i,  e.,  the  decision  of  controversies  in 
regard  to  the  private  and  criminal  law,  has  been  given 
to  courts  over  whose  actions  the  prince  can  exercise  no 
influence  whatever.^     Finally  every  official  act  of  the 

^  Meyer,  Staatsrecht,  408  ;  Schulze,  op.  cit.,  I.,  icjo. 
'  Meyer,  op.  cit.^  204,  205. 
'  Schulze,  op.  cit..  I.,  iqo. 


EXECUTIVE  POWER  IN  GERMANY.  91 

prince,  whatever  be  its  nature,  must  be  countersigned 
by  some  one  of  the  ministers  who  assumes  the  respon- 
sibility for  it  either  to  the  legislature  or  to  the  criminal 
courts,  generally  to  the  latter.^ 

In  the  second  place,  the  imperial  constitution  has 
seriously  limited  the  political  powers  of  the  prince 
although  it  has  not  changed  the  legal  theory  that  the 
prince  possesses  all  the  governmental  powers  not 
granted  specifically  to  some  other  authority.  Thus  the 
princes  have  lost  for  the  most  part  their  diplomatic  and 
military  powers^;  a  certain  part  of  their  legislative 
power,  indeed  almost  all  their  legislative  power  over 
the  relations  regulated  by  the  private  law,  while  cer- 
tain branches  of  administration  which  were  formerly 
attended  to  by  the  princes  have  been  transferred  to  the 
imperial  government.^ 

3.  His  administrative  pmoers. — As  a  result  of  these 
principles  and  of  these  limitations  the  German  prince 
at  the  present  time  has  the  following  administrative 
powers : 

a,  A  wide  power  of  appointment  which  extends  to 
many  of  the  officers  in  the  localities  and  is  not  in  any 
case  limited  by  any  principle  of  ministerial  responsi- 
bility to  the  legislature.  The  prince  is  not  obliged  to 
keep  or  obtain  the  confidence  of  the  legislature  in  the 
selection  of  his  advisers  and  agents.^ 

b.  The  prince  has  a  wide  power  of  removal  even  of 
local  officers — a  power  which  in  some  cases  may  result 
in  the  actual  dismissal  from  office  of  an  objectionable 
officer,  in  other  and  most  cases  may  result  simply  in 

'  Meyer,  op.  cit.,  186  ;  Schulze,  op.  cit.,  I.,  191,  298. 

'Const.,  art.  11.  ' 

^  For  the  details  see  the  Const.,  art,  4  ;  Meyer,  Staatsrecht^  176  et.  seq, 

^  Schulze,  op.  cit.  I.,  299,  320. 


92  CENTRAL  ADMINISTRATION. 

retiring  the  officer  from  active  participation  in  the  work 
of  administration.  In  such  cases  the  retired  officer  is 
still  regarded  as  an  officer  with  most  of  the  privileges 
and  duties  which  are  attached  to  the  official  relation/ 
This  power  is  also  unlimited  by  the  necessity  of  obtain- 
ing or  keeping  the  confidence  of  the  legislature.^ 

G,  The  prince  has  a  wide  power  of  direction  to  be 
exercised,  however,  in  all  cases  through  ministers  who 
become  criminally  responsible  and  sometimes  responsi- 
ble to  the  legislature  for  all  the  acts  by  means  of  which 
the  power  of  direction  is  exercised.^ 

d.  The  prince  has  a  large  ordinance  power  over  all 
matters  which  have  not  been  regulated  in  detail  by  the 
legislature.-*  There  is  somewhat  of  a  conflict  among  the 
commentators  as  to  how  large  this  ordinance  power  is, 
but  the  better  opinion  would  seem  to  be  that  where  the 
constitution  has  not  assigned  limits  to  the  ordinance 
power,  and  where  the  statutes  of  the  legislature  have 
not  regulated  a  given  subject,  the  prince  may  regulate 
any  matter  by  ordinance.^  In  accordance  with  custom 
based  upon  this  theory  many  things  are  in  Germany 
regulated  by  ordinance,  both  independent  and  supple- 
mentary ordinance,  which  in  the  United  States  are 
regulated  by  statute.  This  ordinance  power  must,  how- 
ever, be  exercised  through  some  one  of  the  ministers, 
who  must  countersign  the  ordinance  and  becomes  re- 
sponsible as  in  the  other  cases  for  his  acts. 

From  the  juristic  point  of  view  the  acts  of  the  prince 

*  See  infra,  pp.  94,  118  ;  II.,  lOO. 
'  Schulze,    op.  cii.,  I.,  341. 

'  IHd.,  298  ;  Bomhak  Preussisches  Staatsreckt,  I.,  144. 

*  Schulze,  op.  cit.,  I.,  528  et.  seq. 

^  Gneist,    Verwallung,   yusiiz  und  Rechtsweg,  sec.  74  ;  Bornhak,    op.  cit,^ 
Im  436. 


EXECUTIVE  POWER  IN  GERMANY.  93 

are  in  almost  all  cases  the  acts  of  the  ministers.  The 
remedies  offered  to  the  individual  against  the  acts  of 
the  prince  must  therefore  be  found  in  the  remedies 
offered  against  the  acts  of  the  ministers.^ 

//. —  The  Emperor, 

1.  General  position.  The  German  Emperor,  who  is 
the  chief  executive  authority  in  the  imperial  govern- 
ment, Occupies  quite  a  different  position  from  that  of 
the  prince  in  the  separate  members  of  the  empire.) 
While  the  prince  possesses  all  the  governmental  powers 
which  have  not  been  given  to  some  other  authority, 
thef  Emperor  is  an  authority  of  enumerated  powers:;  He 
thus  occupies,  from  the  administrative  point  of  view, 
about  the  l^ame  position  which  is  occupied  by  the 
United  States  President.^) 

The  constitution^  declares  that  the  King  of  Prussia 
shall  be  German  Emperor.  The  provisions  of  the 
Prussian  constitutioQ  relative  to  the  King  are  of  value 
therefore  as  to  the  tenure  of  the  Emperor,  but  the 
questions  arising  therefrom,  as  well  as  all  questions 
arising  in  regard  to  the  political  powers  of  the  Em- 
peror, belong  to  constitutional  law  and  will  not  be 
treated  here.* 

2.  Powers  relative  to  the  official  service, — The  ad- 
ministrative powers  of  the  Emperor  relate,  in  the  first 
place,  to  the  official  service  of  the  empire.  Among  this 
class  of  powers  may  be  mentioned  "a  power  of  appoint- 
ment^   A  general  power  of  appointment  is  given  by 

1  For  these  see  infra,  p.  158  ;  II.,  pp.  177,  188. 

^  One  of  the  best  of  the  German  commentators  on  this  account  regards  the 
governmental  form  of  the  empire  as  a  republic.     Zorn,  op.  cit.,  I.,  162. 
3  Art.  II. 
*See  Burgess,  op.   cit.,  II.,  2()^et  seq. 


94  CENTRAL  ADMINISTRATION. 

tlie  constitution  to  the  Emperor.  ^  This  clause  is 
somewhat  modified  by  other  provisions,  as  well 
as  by  certain  statutes  whose  result  is  some- 
what to  limit  the  broad  power  of  appointment,  by 
requiring  either  the  presentation  or  the  confirmation  of 
the  person  to  be  appointed,  by  the  Federal  Council,  or  a 
committee  thereof.  ^  In  addition  to  this  general  power 
of  appointment,  the  constitution  further  gives  to  the 
Emperor  the(Sole  power  of  appointing  the  imperial 
chancellor,^  who  is  the  only  responsible  minister  in  the 
imperial  administration.^  The  only  limitation  of  this 
power  is  to  be  found  in  the  requirement  that  the  (chan- 
cellor must  be  a  member  of  the  Federal  Council^  But 
this  does  not  amount  to  much,  inasmuch  as  the\Einperor 
as  King  of  Prussia  has  the  right  of  appointing  several 
members  of  the  Federal  Council.  Further  a  power  of 
removal  is  to  be  mentioned.^  This  power  of  removal 
is  not,  however,  an  arbitrary  one.  For  in  accordance 
with  the  principles  which  have  been  all  but  universally 
adopted  in  the  German  administrative  system,  discharge 
from  office  may  take  place  only  as  the  result  of  the  con- 
viction by  a  criminal  or  a  disciplinary  court  of  the 
commission  of  a  crime,  or  the  violation  of  official  duty.^ 
In  order,  however,  to  permit  the  Emperor  to  secure  a 
harmonious  administration,  he  is  permitted  to  retire 
most  of  the  officers  who  occupy  places  involving  the  ex- 
ercise of  large  discretion.  The  official  relation  is  not, 
however,  broken  by  such  retirement,  but  the  officer 
receives  a  portion,  three  quarters,  of  his  pay,  and  is 
subject  to  all  the  duties  and  enjoys  all  the  privileges 

^Art.  i8,  sec.  i.  *Zom,  op.  cit.,  I.  195  et  seq. 

*  See  infra,  p.  118.  '  Const.,  art.  18. 

3 Art.  15.  'C/.  L.,  March  31,  1873. 


EXECUTIVE  POWER  IN  GERMANY.  95 

connected  with  the  office,  with  the  exception  of  that  of 
performing  official  acts.^ 

The  power  of  direction  is  recognized  as  existing  in 
the  Emperor  in  accordance  with  the  general  principles 
of  a  hierarchically  organized  service,  of  which  the  Em- 
peror is  the  head.  This  power  of  direction  is,  however, 

Cexercised  under  the  responsibility  of  the  chancellor, 
who  must  countersign  all  the  acts  by  means  of  which 
it  is  exercised.^)  Exactly  what  the  responsibility  of  the 
chancellor  is,  no  one  seems  to  be  able  to  say.  All  that 
it  practically  amounts  to,  on  account  of  the  fact  that 
legislation  has  never  elaborated  it,  is  that  the  chancellor  1 
may  be  called  upon  to  defend  his  policy  before  the! 
Federal  Council. 

3.  Ordinam^e  power, — The  Emperor  is  further 
recognized  by  the  constitution^  as  the  head  of  the 
administration,  and  as  such  has  powers  and  duties 
affecting  the  administrative  services.  He  is  to  (execute 
the  imperial  laws,^  and  is  to   represent   the   empire.^ 

tHe  does  not,  as  a  result  of  this  position,  have  any 
ordinance  power  except  such  as  may  be  expressly 
mentioned  in  the  constitution,  or  may  be  delegated  to 
him  by  the  legislature.^  The  constitution  has  given 
him  the  ordinance  power  in  one  or  two  instances,  but 
has  not  given  to  him  any  general  power  even  of  supple- 
mentary ordinance.^  In  the  exercise  of  this  ordinance 
power  it  is  often  necessary  that  the  Emperor  get  the 
consent  of  the  Federal  Council  ^ ;  and  all  his  ordinances 

»  Ibid.,  Meyer,  Staatsrechi,  393.  "*  Art.  17. 

»  Const.,  art.  17.  '  Art.  11. 

'  Arts.  12-19.  *  Zorn,  op.  cit.,  I.,  132. 

'  Arts.  50  and  63,  respectively,  give  the  Emperor  the  power  of  supplementary 
ordinance  relative  to  the  posts  and  telegraphs  and  the  army. 
*  Zorn,  oJ>.  cit.,  I.,  132. 


96  CENTRAL  ADMINISTRATION. 

must  be  countersigned  by  tlie  cbancellor,  who  assumes 
responsibility  therefor.'  In  some  cases,  finally,  his 
ordinances  must  be  submitted  to  the  imperial  diet  for 
its  approval."  In  this  limited  power  of  ordinance  is  to 
be  found  almost  all  of  the  power  of  the  Emperor  over 
the  administrative  services,  all  the  details  being  worked 
out  by  the  chancellor  and  his  assistants. 

As  the  Emperor  is  irresponsible,  there  are  strictly 
speaking  no  remedies  against  his  action,  except  such  as 
are  to  be  found  against  the  action  of  the  chancellor.^ 

*  Const.,  art.  17. 

'  Zorn,  op.  cit.,  I.,  133. 

'For  these  see  infra,  p.  158  ;  II.,  pp.  177,  188. 


CHAPTER  VI. 

THE    EXECUTIVE    POWER    AND    AUTHORITY    IN    ENGLAND. 

/. — General  power  of  the  Crown. 

The  theory  which  governs  the  distribution  of 
powers  in  the  English  government  is  in  principle  the 
same  as  that  which  governs  the  distribution  of  powers 
in  the  princely  governments  of  Germany.  The  Crown 
has  the  residuum  of  governmental  power.  All  the 
governmental  powers  which  have  not  been  expressly 
granted  to  some  other  authority  belong  to  the  Crown; 
and  the  Crown  may  act  in  the  exercise  of  its  powers  as 
it  sees  fit,  so  far  as  no  express  limitations  have  been 
put  upon  its  action.  The  only  difference  between  the 
English  and  the  German  systems  is  to  be  found  in  the 
fact  that  in  Germany  the  distribution  of  governmental 
powers  and  the  limitations  on  the  exercise  of  the 
powers  of  the  executive  are  to  be  found  in  a  written 
constitution,  while  in  England  it  is  the  Parliament 
ultimately  which  decides  what  powers  shall  be  exer- 
cised by  the  Crown  and  how  it  shall  exercise  them.^ 
This  position  of  the  English  Crown  results  from  the  ab- 
solute character  of  the  government  established  by  the 
early  Norman  Kings.  "  The  Norman  idea  of  royalty," 
says  Dr.  Stubbs,^  "was  very  comprehensive  .  .  . 
It  combined  all  the  powers  of  national  sover- 
eighty,  as   they   had   been   exercised   by  Edgar  and 

'  Burgess,  op.  cit.,  II.,  198,  199. 

'  Constitutional  History  of  England^  I.,  338. 

7  97 


98  CENTRAL  ADMINISTRATION. 

Canute,  with  those  of  the  feudal  theory  of  monarchy, 
which  was  exemplified  at  the  time  in  France  and  the 
Empire."  The  King  was  thus  both  the  chosen  head  of 
the  nation  and  the  feudal  lord  of  the  whole  land. 
Further,  the  Norman  idea  of  the  kingship  discarded 
the  limitations  which  had  been  placed  on  either  the 
continental  or  Anglo-Saxon  monarchs — in  England,  the 
constitutional  action  of  the  witan,  and  on  the  continent, 
the  extorted  immunities  and  usurpations  of  the  feuda- 
tories.' At  first  the  Crown  was  not  hereditary,  but 
later  it  became  so ;  and  its  power  grew  to  be  absolutely 
despotic.^*  Soon,  however,  this  despotic  power  became 
limited  by  the  necessity  of  the  concurrence  of  the 
action  of  Parliament,  which  we  find  well  developed  by 
the  latter  part  of  the  thirteenth  century,  and  whose 
consent  was  necessary  for  the  imposition  of  taxes,  and 
also  for  the  enactment  of  all  rules  of  law  which 
affected  the  ordinary  relations  of  individuals.  For 
whatever  had  once  been  enacted  by  Parliament  became 
a  part  of  the  lex  terrce  and  therefore,  in  accordance 
with  the  old  Teutonic  principle,  could  not  then  be 
changed  without  the  consent  of  the  people  as  ex- 
pressed by  Parliament,  its  representative.^  Later  on, 
Parliament  assumed  to  itself  the  right  to  initiate  as 
well  as  to  approve  law;  and  finally  the  Crown  lost 
through  misuse  its  original  power  to  refuse  its  consent 
to  what  Parliament  does.* 
'  Ibid. 

*  Cf.  Gneist,  Das  Englische  Verwaltungsrecht,  1884,  p.  214  and  passim. 
Anson,  The  Law  and  Custom  of  the  Constitution,  II.,  56  et  seq. 

*  See  Gneist,  op.  cit.,  207. 

*  Though  the  general  opinion  seems  to  be  that  the  veto  power  of  the  Crown 
has  become  obsolete,  Mr.  Todd  thought  that  this  power  though  dormant  might 
be  revived.  See  Parliamentary  Government  in  England,  2d  edition,  II.,  390- 
392  ;   cf.  also  Burgess,  op.  cit.,  II.,  201. 


EXECUTIVE  POWER  IN  ENGLAND.  99 

//. — Limitations  on  the  power  of  the  Crown, 

The  result  of  this  development  is  that  Parliament  has 
assumed  most  of  the  legislative  power,  since  it  has  by- 
statute  regulated  most  important  subjects.  The  Crown 
may  still,  however,  regulate  any  matters  which  have  not 
been  regulated  by  Parliament  and  has  thus  quite  a  large 
ordinance  power  both  independent  and  supplementary.^ 
Parliament  has  also  assumed  the  exercise  of  the  taxing 
power  and  has  in  several  cases  forbidden  the  Crown  to 
levy  taxes  without  its  consent.^  The  Crown  has  further 
lost  almost  all  its  judicial  power.^  But  it  has  retained 
in  large  part  its  old  executive  powers  together 
with  the  power  of  ordinance  which  has  already  been 
alluded  to.  In  the  exercise  of  these  powers  the 
Crown  has,  however,  been  seriously  limited  in  its  ac- 
tion. For  at  the  same  time  that  Parliament  was  devel- 
oping there  was  also  developing  another  body  by  which 
the  action  of  the  Crown  has  always  been  more  or  less 
controlled.  This  was  the  Privy  Council.^  The  consent 
of  this  body  has  become  necessary  for  the  valid  exer- 
cise of  the  ordinance  power.s  Finally,  every  act  of  the 
Crown  must  be  performed  under  the  responsibility  of 
one  of  the  members  of  the  Privy  Council  who  alone 
are  the  responsible  advisers  of  the  Crown.^  The  adop- 
tion of  this  principle  was  necessary  because  the  legal 
theory  of  the  English  government  assigns  to  the  Crown 
a  position  of  absolute  irresponsibility.  The  king  can 
do  no  wrong  is  one  of  the  fundamental  English  maxims.^ 

*  Cf.  Burgess,  op.  cit.,  II.,  199. 

*  E.g.  see  Petition  of  Right,  3  Car.  I.,  c.  i.  X.  ;  and  Bill  of  Rights,  I. 
William  and  Mary,  2d  Session,  c.  2. 

*  Bill  of  Rights  and  the  Act  of  Settlement,  11  and  12  William  III.,  c.  II. 

*  For  its  history  see  infra,  p.  122.  '   Ihid.,  I,,  116,  266. 

*  Todd,  op.  cit.,  II.  80.  ■>  Anson,  op.  cit.,  II.,  41. 


loo  CENTRAL  ADMINISTRATION, 

But  with  these  limitations  of  the  power  of  the  Crown, 
the  Crown  may  do  anything.  In  certain  cases  the 
Crown  "acts  in  Parliament,"  as  the  expression  is,  in 
others  in  council,  or  some  privy  councillor  is  responsible 
for  its  acts.  The  English  Crown  is  not  therefore  an 
authority  of  enumerated  powers  but  may  do  anything 
which  it  has  not  been  forbidden  to  do.  The  limita- 
tions on  the  power  of  the  Crown  become  as  important 
in  England  as  the  enumerated  powers  of  the  President 
in  the  United  States.  What  these  limitations  are  has 
already  been  shown.  As  a  result  of  them  and  of  the 
general  theory,  the  Crown  has  the  administrative  ^  as 
well  as  the  political  power.  The  Crown  has  the  power 
to  create  offices,  to  appoint  in  many  cases  their  incum- 
bents except  in  the  case  of  local  administrative  officers 
who  are  usually  elected,  to  remove  them  except  as 
above,  and  to  direct  them  how  to  act.  The  Crown  is 
therefore  the  chief  of  the  administration  as  well  as  the 
political  head  of  the  government.  The  position  of  the 
Crown  is,  however,  greatly  modified  by  the  adoption  of 
the  principle  that  the  advisers  of  the  Crown,  without 
whom  the  Crown  cannot  act,  must  possess  the  confi- 
dence of  the  party  in  the  majority  in  the  lower  house 
of  Parliament,  must  practically  be  its  nominees.^  This 
principle  of  parliamentary  responsibility  plays  the 
same  role  in  England  as  in  Prance  which  borrowed  it 
from  England.  It  puts  the  Crown  in  the  position  of 
reigning  but  not  governing.  But,  just  as  in  France, 
the  theory  of  the  distribution  of  powers  has  a  great 
influence  on  the  action  of  the  administration ;  for  the 
advisers  of  the  Crown  may  with  the  consent  of  the 
Crown  do  everything  which  this  theory  permits  the 

» Anson,  op.  cit.,  II.,  53.  '  Todd,  op.  cit.,  II.,  134  and  142. 


EXECUTIVE  POWER  IN  ENGLAND.  loi 

Crown  to  do.  So  long  as  the  Crown  and  its  ministers 
have  the  confidence  of  the  lower  house  of  Parliament 
they  have  most  extensive  executive  powers,  greater 
perhaps  than  in  any  other  country.  Thus  the  Crown 
in  council  may  declare  war  and  make  treaties  of  peace  ^ 
which  in  all  other  countries  can  only  be  done  with  the 
consent  of  the  legislature,  or  that  of  one  of  the  houses 
of  the  legislature  as  in  Germany.  It  is  only  when 
the  Crown  and  its  ministers  lose  the  confidence  of 
the  lower  house  of  Parliament  that  the  principle  of  the 
freedom  of  action  of  the  Crown  in  the  exercise  of  the 
powers  left  to  it  by  Parliament  is  susceptible  of  limita- 
tion. And  in  such  cases  it  must  be  remembered  that 
the  result  of  the  lack  of  confidence  is  not  that  Parlia- 
ment proceeds  to  take  action  itself  but  that  the  Crown 
has  to  choose  new  ministers  who  will  have  the  confi- 
dence of  Parliament  or  dissolves  Parliament  in  the  hope 
that  the  new  house  will  have  confidence  in  the  existing 
ministers.  In  all  cases  it  is  the  Crown  and  not  Parlia- 
ment which  administers. 

As  the  Crown  is  in  theory  irresponsible  there  is  no 
remedy  against  its  acts  except  such  as  is  to  be  found 
against  the  ministers  who  may  have  countersigned  the 
acts  of  the  Crown,  thereby  assuming  responsibility 
therefor.'^  But,  as  in  the  United  States  and  France, 
the  courts  may  refuse  to  enforce  the  ordinances  of  the 
Crown  in  case  they  regard  them  as  illegal.^ 

^Ibid.^  I.,  351  gtseq. 

'  For  the  remedies  against  the  acts  of  the  ministers  see  infra  p.  158. 

3  Todd,  op.  cit.,  I.,  461,  citing  Attorney-General   v.  Bishop  of  Manchester, 

L.,  R.  3,  Eq.  436. 


Division  2,—  Mcecmtime  Councils, 


CHAPTER  I. 

THE   EXECUTIVE    COUNCIL   IN   THE   UNITED    STATES. 

/. — General  position. 

By  the  side  of  the  executive  authority  there  is  often 
placed  a  council  to  which  is  given  some  sort  of  a  con- 
trol over  executive  action.  In  almost  every  one  of  the 
American  colonies  there  vras  a  body  known  as  the 
council  of  the  governor,  the  members  of  which  were 
appointed  by  the  King,  and  whose  consent  was  neces- 
sary for  the  validity  of  certain  of  the  acts  of  the  gov- 
ernor. With  the  governor  it  formed  one  branch  of 
the  colonial  legislature.*  When  the  colonies  became 
independent,  in  several  of  them  this  institution  was 
retained  and  exists  at  the  present  time.  Thus  in  the 
commonwealths  of  Maine,  Massachusetts,  and  New 
Hampshire  we  find  still  a  governor's  council  whose 
consent  is  necessary  for  the  governor's  appointments.^ 
In  others,  the  council  as  such  has  disappeared,  and  the 
powers  which  it  possessed  have  been  transferred  to  the 
upper  house  of  the  legislature.^  This  is  the  general 
rule  at  the  present  time  and  is  true  of  the  national 
government  and  of  the  commonwealth  of  New  York.* 

'  So  in  New  York,  see  supra,  pp.  53,  57.  ^  Ibid.,  sec.  210,  C. 

'  See  Stimson,  op.  cit.,  sec.  210,  B.  •*  Supra,  p.  77. 

102 


EXECUTIVE  COUNCIL  IN  UNITED  STATES.    103 

The  powers  which  these  councils  or  the  senates  as 
executive  councils  possess  at  the  present  are  some- 
what different  in  the  national  and  commonwealth 
governments. 

//. — In  the  national  government. 

In  the  national  government  the  only  power  which 
the  Senate  possesses  over  the  administrative  acts  of 
the  President  is  the  power  to  refuse  its  consent  to  the 
most  important  of  his  appointments.  For  a  time  it 
had  also  the  power  to  prevent  the  President  from  re- 
moving those  officers  for  whose  appointment  its  con- 
sent was  necessary ;  but  with  the  repeal  of  the  tenure- 
of-office  acts^  this  power  was  lost.^  In  addition  to  this 
control  over  the  purely  administrative  acts  of  the  Presi- 
dent, the  Senate  also  has  the  power  to  control  one  of 
his  political  powers.  All  treaties  negotiated  by  the 
President  must,  to  be  binding  upon  the  government, 
receive  the  approval  of  the  Senate  to  be  expressed  by 
a  two-thirds  vote.^  These  powers  which  the  Senate 
possesses  over  the  acts  of  the  President  must  not  be 
classed  among  its  legislative  powers.  For,  though  the 
Senate  is  an  important  legislative  body,  it  is  at  the  same 
time  an  executive  council  and  the  only  executive 
council  in  the  national  government ;  and  when  acting 
as  such,  acts  separately  and  apart  from  the  other  legis- 
lative body,  the  House  of  Representatives.  When  so 
acting  it  is  said  to  be  in  executive  session  and  may  sit 
at  a  time  when  the  house  of  representatives  is  not  in 

1  Supra,  p.  65. 

'  The  Senate  has  such  a  power  only  in  those  cases  in  which  the  statutes  of 
Congress  expressly  recognize  it  as  ^.  ^.  in  the  case  of  the  postmaster-general. 
United  States  Revised  Statutes,  sees.  388  and  389. 

*  Const.,  art.  ii.,  sec.  2,  par.  2. 


/ 


I04  CENTRAL  ADMINISTRATION. 

session,  whicli  may  not  be  the  ease  when  it  is  acting 
as  a  part  of  the  legislature.  Nothing  is  more  common 
than  to  see  the  Senate  summoned  for  a  special  session 
when  Congress  has  adjourned  or  is  not  in  session. 
Further,  the  Senate  as  an  executive  council  may  be 
distinguished  from  the  Senate  as  a  part  of  Congress 
by  the  difference  in  procedure  which  is  followed  in  the 
two  cases.  When  it  acts  as  an  executive  council  its 
sessions  are  as  a  rule  secret,  while  its  sessions  as  a  part 
of  the  legislature  are  open  to  the  public.  The  reason 
of  this  rule  is  to  be  found  in  the  delicate  character  of 
the  business  which  comes  before  it  when  acting  as  an 
executive  council. 

///. — In  the  commonwealths. 

While  the  United  States  Senate  has  a  control  over 
certain  of  both  the  political  and  the  administrative 
acts  of  the  President,  the  commonwealth  Senate, 
acting  as  an  executive  council,  and  the  governor's 
council,  which  is  elected  by  the  legislature  in  Maine,^ 
but  elsewhere  elected  by  the  people,^  has  control  over 
only  the  administrative  acts  of  the  governor.  Its  con- 
trol over  these  administrative  acts  is,  however,  more 
extended  than  the  similar  control  of  the  Senate  over 
the  acts  of  the  President.  For  the  rule  in  the  various 
commonwealths  is,  that  the  consent  of  the  executive 
council  is  necessary  not  only  for  appointments  but 
also  for  removals.^  What  has  been  said  with  regard 
to  the  separate  session  of  the  national  Senate  when 
acting  as  an  executive  council,  may  be  repeated  here. 

*  Maine  Constitution,  art.  5,  22. 
^  Stimson,  op.  cit.,  sec.  202,  B. 

8  For  New  York  see  supra,  p.  79.       See  also  Maine  Constitution,  art.  9, 
sec.  6  ;  Stimson,  sec.  210  ;  c/.,  Bryce,  American  Commonwealth,  I.,  468. 


EXECUTIVE  COUNCIL  IN  UNITED  STATES.    105 
IV. — Comparison, 

It  will  be  seen  from  this  description  of  the  executive 
council  in  the  United  States  that  its  most  important 
function  is  to  control  one  of  the  administrative  powers 
of  the  chief  executive  and  that  this  control  is  exercised 
especially  over  his  relations  with  his  subordinates. 
Through  it  the  power  has  been  taken  away  from  the 
chief  executive  to  constitute  the  official  personnel  as  he 
sees  fit.  This  limitation  of  his  power  naturally  involves 
a  lessening  of  his  responsibility.  The  evil  effects  of 
such  a  plan  may  be  avoided  only  through  the  moderate 
use  by  the  Senate  of  its  powers  of  control.  In  the 
national  government  this  has  fortunately  been  the 
policy  of  the  Senate  almost  from  the  beginning  of  our 
administrative  history.  It  may  be  laid  down  as  one  of 
the  customary  rules  of  our  constitutional  law  that  the 
Senate  should  permit  the  President  complete  freedom 
in  the  filling  of  the  most  important  administrative  posi- 
tions.' Almost  the  only  cases  in  which  the  Senate 
habitually  exercises  any  control  over  the  President's 
power  of  appointment  are  the  judicial  appointments. 
The  Senate  has,  however,  not  been  so  careful  to  leave 
the  President  free  hand  in  the  exercise  of  his  political 
powers.  There  are  not  a  few  cases  in  our  history  where 
treaties  negotiated  by  the  President  have  not  obtained 
the  confirmation  of  the  Senate.  One  reason  for  the 
distinction  which  is  thus  made  is  undoubtedly  to  be 
found  in  the  fact  that  the  approval  of  treaties  requires 
a  two-thirds  vote  of  the  Senate ;  but  another  is  as  un- 
doubtedly to  be  found  in  the  fact  that  while  the  Senate 
has  felt  that  its  control  over  the  President's  power  of 

*  Cf.  RUttiman,  op.  cit.,  I.,  276,  and  authorities  cited. 


io6  CENTRAL  ADMINISTRATION. 

appointment  should  be  made  use  of  only  in  such  a  way 
as  not  to  hamper  the  action  and  limit  the  responsibility 
of  the  President,  it  may  properly  interfere  to  prevent 
the  conclusion  of  a  treaty  which  in  its  opinion  is  not 
for  the  best  interest  of  the  country.  In  administration 
the  President  is  to  be  supreme  in  order  that  the  govern- 
ment may  be  efficient  and  harmonious  ;  in  his  political 
relations  the  President  is  to  be  subject  to  some  control. 
The  commonwealth  executive  council  has  unfortu- 
nately not  always  adopted  this  conservative  rule,  but  has 
frequently  made  an  immoderate  use  of  its  power  of 
control  over  the  administrative  powers  of  the  governor 
with  the  result  that  the  governor's  responsibility  for 
appointments  has  been  all  but  destroyed.  Nothing  is 
more  common  in  the  commonwealth  than  to  see  the 
Senate  reject  the  governor's  appointees  for  no  other 
reason  apparently  than  that  it  does  not  think  the  ap- 
pointments conducive  to  the  interests  of  the  political 
party  in  control  of  that  body,  or  in  order  to  force  the 
governor  to  take  some  action  approved  by  it. 


CHAPTEK   II. 

THE   EXECUTIVE  COUNCIL    IN   FRANCE. 
/. — History, 

The  executive  council  in  France  has  always  played  a 
much  more  important  role  than  has  been  assigned  to  it 
in  the  United  States.  At  one  time  it  was  much  more 
important  even  than  now.  In  its  intelligence  and  fair- 
ness were  found  almost  the  only  guaranty  of  a  good 
and  impartial  government.^  The  most  important  exec- 
utive council  was  originally  the  great  council  of  the 
king,  which  at  one  time  discharged  almost  all  the  func- 
tions of  government.  From  this  was  developed  the 
Parliament  of  Paris,  the  first  purely  judicial  body  that 
France  possessed,  and  the  royal  council  which  assumed 
the  administrative  powers  of  the  great  council.^  In  the 
reign  of  Louis  XIV  the  royal  council  was  divided  into 
five  sections,  each  of  which  attended  to  certain  branches 
of  the  administration.  The  section  which  corresponded 
most  nearly  with  our  ideas  of  an  executive  council  was 
known  as  the  council  of  despatches.^  This  organization 
lasted  almost  unchanged  up  to  the  time  of  the  revolu- 
tion, when  the  constituent  assembly  re-organized  the 
government  of  France   and    abolished    the  executive 

^  Aucoc,  op.    cit.,  I.,  126.  *  Ibid.,  127. 

^  Ibid.,  128. 

107 


io8  CENTRAL  ADMINISTRATION. 

council.^  Witli  the  advent  of  Napoleon,  the  executive 
council  was  revived,  a  new  council,  called  the  Council 
of  State,  beino^  established.  Under  the  direction  of 
Napoleon  it  accomplished  an  enormous  amount  of  work. 
Indeed,  this  was  the  most  brilliant  period  of  the  execu- 
tive council  in  France.  Its  duties  were  largely  legis- 
lative in  character,  and  it  decided  all  difficulties  that 
arose  in  the  course  of  the  administration  of  the  govern- 
ment.^ The  Council  of  State  was  so  closely  associated 
with  the  glories  of  the  empire,  that  the  attempt  was 
made  under  the  government  of  the  restoration  to  do 
away  with  it,  but  this  failed  and  the  council  resumed 
its  place  in  the  government.  During  the  government 
of  the  restoration,  as  well  as  under  the  July  monarchy, 
the  Council  of  State  was  regarded  as  an  executive  coun- 
cil exclusively,  a  legislature  having  been  formed  in  the 
meantime  which  relieved  it  of  its  legislative  duties ; 
but  with  the  republic  of  1848  the  council  was  made 
use  of  by  the  legislature  to  control  the  acts  of  the 
executive  authorit}^.^  During  the  second  empire  the 
legislative  functions  of  the  council  were  very  much  in- 
creased, and  it  was  again  almost  the  only  guaranty  of 
impartial  government.  When  the  present  republic  was 
formed,  with  a  legislative  body  of  great  power,  the 
council  was  again  relegated  to  the  position  of  an  ad- 
visory executive  council;  which  position  it  occupies  at 
the  present  time. 

//. — Organization. 

The  organization  of  the  present  Council  of  State  i8 

governed  by  the  laws  of  May  24,  1872,  and  July  13, 

1879.     In  accordance  with  these  laws  it  is  composed 

of  thirty-two  councillors  of  state  in  what  is  known  as 

^  Ibid.,  I'ii.  ^  Ibid.,  122.  » /^iV.,  133. 


EXECUTIVE  COUNCIL  IN  FRANCE.  109 

ordinaiy  service,  eighteen  councillors  of  state  in  what  is 
known  as  extraordinary  service,  thirty  Commissioners 
(maitres  des  requetes),  and  finally  of  thirty-six  auditors, 
twelve  of  whom  are  of  the  first  class,  and  twenty-four 
of  the  second  class.  The  ministers  have  the  right  to 
attend  the  deliberations  of  the  general  assembly  of  the 
council,  and  to  vote  on  matters  ^^ffecting  their  depart- 
ments, when  the  council  is  not  acting  as  a  court.  The 
Council  of  State  is,  when  not  acting  as  a  court,  presided 
over  by  the  Keeper  of  the  Seals,  minister  of  justice,  and 
in  his  absence  by  a  vice-president  appointed  by  the 
President  of  the  republic  from  among  the  councillors  of 
state  in  ordinary  service.  The  method  of  appointment 
for  the  different  classes  of  the  members  differs.  Thus 
the  councillors  of  state  in  ordinary  service  are  ap- 
pointed and  dismissed  by  the  President  of  the  republic 
after  hearing,  but  not  necessarily  taking,  the  advice  of 
the  council  of  ministers.^  The  councillors  of  state  in 
extraordinary  service  are  chosen  by  the  President  of 
the  republic  from  among  the  members  of  the  adminis- 
tration, whose  advice  it  is  considered  desirable  to  have 
in  important  administrative  matters.  They  receive  no 
pay,  as  do  the  other  councillors  of  state,  and  have  no 
vote  when  the  council  is  acting  as  a  court.  The  com- 
missioners are  appointed  by  the  President  of  the  re- 
public on  the  presentation  of  the  vice-president  of 
the  council  and  the  presidents  of  the  different  sections 
into  which  the  council  is  divided,  and  are  dismissed 
after  hearing  the  opinion  of  these  officers.  The  auditors 
are  appointed  as  the  result  of  a  competitive  examina- 
tion, the  auditors  of  the  first  class  being  chosen  from 
those  of  the  second  class. 

1  L.,  Feb.  25,  1875,  art.  4. 


no  CENTRAL  ADMINISTRATION. 

For  all  these  different  classes  of  officers  there  are 
conditions  of  age  whose  intention  is  to  secure  only 
those  persons  from  whom  the  government  can  hope  to 
obtain  the  best  work.  These  conditions  of  age  vary 
from  not  less  than  twenty-one  and  not  more  than  twenty- 
five  years  for  the  auditors  of  the  second  class  to  not 
less  than  thirty  years  for  the  councillors  of  state. 
While  the  President  is  not  limited  in  his  choice  of  coun- 
cillors of  state  in  ordinary  service,  who  are  the  most 
important  of  the  members,  the  intention  of  the  law  is 
to  facilitate  the  choice  of  such  officers  from  among  the 
commissioners  who  in  their  turn  will  be  chosen  from 
among  the  auditors  of  the  first  class.  As  the  subjects 
for  the  competitive  examination  for  the  position  of 
auditor  are  law,  politics,  and  political  economy  the 
Council  of  State  will  ordinarily  consist  of  a  body  of 
experts  in  political  and  administrative  matters  whose 
advice  must,  in  the  nature  of  things,  be  of  the  greatest 
value  both  to  the  administration  and  to  the  legislature. 

The  Council  of  State  is  divided  into  four  administra- 
tive sections  and  one  judicial  section.  Each  of  the 
administrative  sections  has  a  certain  number  of  admin- 
istrative departments  to  advise ;  while  the  judicial 
section  is  occupied  altogether  as  an  administrative 
court.*  The  council  acts  in  section,  in  sections  united, 
and  in  general  assembly.  Only  the  most  important 
matters  are  attended  to  in  the  general  assembly,  to 
which  they  go  after  examination  by  one  of  the  sections 
or  by  two  or  more  sections  united.  What  affairs  are 
to  go  to  the  general  assembly  is  decided  by  the  laws  of 
the  country  and  the  by-laws  of  the  council ;  and  where 
it  is  provided  that  any  matter  shall  go  to  the  general 

^  Boeuf ,  op.  cit.,  citing  Decree  Aug.  2,  1879. 


EXECUTIVE  COUNCIL  IN  FRANCE,  in 

assembly,  where  the  examination  is  much  more  thorough 
than  in  the  sections,  this  is  an  absolutely  necessary  pre- 
requisite to  the  validity  of  the  action  subsequently 
taken.^ 

///. — Fu  fictions. 

The  functions  of  this  council  are  both  legislative  and 
administrative.  The  legislative  functions  are  much 
less  important  now  than  formerly.  Its  intervention  in 
legislative  matters  is  now  altogether  optional  with  the 
legislature  which  may  send  any  bill  which  is  before  it 
to  the  council  for  its  advice.  The  executive  which, 
it  will  be  remembered,  may  initiate  law,  may  also  send 
any  bill  which  it  is  proposed  to  submit  to  the  legisla- 
ture to  the  council  for  its  advice  and  may  by  decree 
designate  any  of  the  councillors  of  state  to  support  any 
of  its  bills  before  the  legislature.  Its  administrative 
functions  are,  however,  very  important.  In  the  first 
place  the  advice  of  the  council  must  be  asked  for  all 
ordinances  of  public  administration  or  decrees  in  the 
form  of  ordinances  of  public  administration.^  When 
it  is  remembered  that  it  is  the  habit  of  the  French 
legislature  to  incorporate  into  the  statutes .  only  very 
general  principles  and  expressly  to  delegate  to  the  ex- 
ecutive the  power  to  regulate  details  by  an  ordinance 
of  public  administration  it  will  be  seen  what  an  impor- 
tant function  the  Council  of  State  discharges  in  work- 
ing out,  as  it  does,  the  details  of  almost  all  statutes. 
Finally  the  traditions  of  the  French  government  lead 
the  President  and  the  ministers  to  submit  to  the  council 
all  questions  which  are  valuable  as  offering  precedents 
for  future  action.^    This  custom  alone  makes  the  work 

*  Aucoc,  op.  cit.^  I.,  144  and  145,  citing  several  decisions  of  the  council. 

*  Supra,  p.  86.  ^  Aucoc,  op.  cit.,  L.,  143. 


112  CENTRAL  ADMINISTRATION. 

of  the  council  very  large.  Its  advice  is  nearly  always 
asked  as  to  the  exercise  of  the  central  control  which 
the  executive  authority  possesses  over  the  actions  of 
the  localities,  and  over  the  recognized  religious  denom- 
inations ;  as  to  the  grant  of  charters  ;  and  as  to  many 
acts  in  the  financial  administration.  Indeed  it  may  be 
said  that  what  in  this  country  and  in  England  is  done 
by  means  of  special  and  local  legislation  is  in  France 
done  by  the  decrees  of  the  President  or  orders  of  the 
ministers  issued  after  hearing  the  advice  of  the  Council 
of  State.^  An  idea  of  the  extent  of  the  work  of  the 
Council  of  State  may  be  obtained  from  the  fact  that 
from  1861  to  1866,  88,888  matters  were  submitted  to 
the  council.^  It  should  be  added  that  the  character  of 
the  questions  which  are  submitted  to  the  Council  of 
State  is  almost  altogether  legal  and  political.  Techni- 
cal questions  are  submitted  to  other  councils  attached 
to  each  of  the  administrative  departments  such  as  the 
general  council  of  public  works  and  of  mines,  the  com- 
mittees of  infantry,  of  cavalry,  and  fortifications,  etc,^ 
etc!" 

While  it  is  necessary  in  many  cases  that  the  advice 
of  the  council  must  be  asked  in  order  that  an  act  of  the 
government  be  legal  it  is  to  be  noticed  that,  in  accord- 
ance with  the  principle  of  French  administration  that 
to  act  is  the  function  of  one,  which  has  already  been 
alluded  to,*  the  government  is  never  bound  by  the 
advice  of  the  council  but  may  reject  it  if  it  sees  fit. 

^  De  Franqueville,  Le  Gouvernement  et  le  Parlement  BritanniqueSy  III., 
119-228  ;  cf.  Dicey,  The  Law  of  the  Constitution,  3d  Ed.  50. 

^  Aucoc,  op.  cit.^  I.,  144  citing  Moniieur  Universel  March  30,  1862  and  Sept. 
II,  1868. 

2  Aucoc,  op.  cit.,  I.,  146. 

^  Supra,  p.  86. 


EXECUTIVE  COUNCIL  IN  FRANCE.  113 

The  French  executive  council  thus  differs  radically 
not  only  in  composition  but  also  in  functions  to  be  dis- 
charged from  the  American  executive  council.  It  is 
composed  of  experts  in  administration  while  the  Ameri- 
can executive  council  is  merely  a  part  of  the  legislature. 
While  the  main  duty  of  the  American  executive  council 
is  to  control  the  action  of  the  executive  authority  in  the 
exercise  of  the  one  function,  which,  in  order  to  secure 
an  efficient  and  harmonious  administration,  he  should 
discharge  on  his  own  responsibility  and  subject  only  to 
the  control  which  the  people  may  exercise  on  election 
day ;  the  duty  of  the  French  executive  council  is  to 
advise  the  executive  in  the  discharge  of  the  important 
function  of  issuing  ordinances  and  to  fill  up  those  details 
of  the  law  which  it  is  the  policy  of  the  French  that  the 
legislature  shall  not  regulate  but  shall  be  regulated  by 
a  body  of  specialists.  Even  in  such  matters  the  French 
are  so  afraid  of  a  diffusion  of  responsibility  that  they  1 
do  not  permit  the  executive  to  be  bound  by  the  advice 
which  his  council  may  give  him.  To  permit  the  Coun- 
cil of  State  to  control  the  President's  power  to  choose 
his  subordinates  would  be  regarded  as  a  gross  violation 
of  the  fundamental  principles  of  good  administration.      1 


CHAPTER  HI. 

THE   EXECUTIVE    COUNCIL   IN    GERMANY. 

/. — In  the  princely  governments. 

As  in  France,  so  in  the  separate  members  of  the 
German  empire,  the  executive  council  was  for  a  time, 
^.  e,  after  the  disappearance  of  the  feudal  estates,  almost 
the  only  organ  through  which  the  absolute  monarchy- 
was  at  all  limited.  During  this  period  of  its  history  it 
was  known  as  the  Privy  Council.'  Later  the  Privy 
Council  became  known  as  the  Council  of  State.^  In 
Prussia  under  Stein  and  Hardenburg  it  did  an  immense 
work — work  mostly  of  a  legislative  character  inasmuch 
as  there  was  no  legislature  in  Prussia  at  the  time.  In 
this  Council  of  State  were  drawn  up  most  of  the  great 
laws  which  did  so  much  towards  the  reorganization  of 
Prussia  at  the  beginning  of  this  century.^  It  was  only 
natural  that,  when  the  revolution  of  1848  brought  with 
it  the  creation  of  a  legislature,  the  council  should  retire 
into  the  background  although  it  was  not  formally 
abolished.*  In  1852  the  attempt  was  made  to  revive 
the  institution  with  which  so  much  that  was  good  was 
associated,  but  failed.   It  is  said  that  from  1848  to  188^ 

^  Stengel,  Organisation  der  Preussischen  Verwaltung^  55  ;  Meyer,  Deutsches 
Staaisrecht,  258  and  259. 
'  Stengel,  Organisation^  etc.,  60. 
^  Ibid.,  67. 
*  Loening,    Deutsches  Verwaltungsrecht^  70. 

114 


EXECUTIVE  COUNCIL  IN  GERMANY.  115 

the  council  met  but  twice/  Again  in  1883  the  attempt 
to  revive  it  was  repeated  and  of  late  it  seems  to  be 
acting  once  more.  The  reason  for  this  second  attempt 
was  to  obtain  a  body  to  which  the  government  might 
have  recourse  for  advice  as  to  bills  which  it  was  in- 
tended to  submit  to  the  legislature.  But  its  composi- 
tion is  not  such  as  to  secure  a  body  similar  to  the 
French  council,  as  it  is  to  be  composed  of  prominent 
personages  appointed  by  the  King  as  he  sees  fit.'^ 

In  addition  to  this  council  which  has  not  as  yet  at- 
tained to  any  great  importance  there  is  in  Prussia  a 
council  of  a  somewhat  special  character,  formed  by 
ordinance  of  November  17,  1880,  and  called  the  Coun- 
cil for  Economical  Affairs.  It  is  composed  of  seventy- 
five  members,  chosen  for  the  most  part  from  men 
engaged  in  the  pursuit  of  commerce,  manufacturing 
industry,  and  agriculture.  It  is  divided  into  three 
sections,  each  of  which  represents  one  of  these  three 
pursuits,  and  is  presided  over  by  the  competent 
minister.  The  duties  of  the  council  are  to  give  its 
opinion  in  regard  to  all  projects  of  law  or  ordinances 
which  affect  the  most  important  economical  interests, 
and  to  consider  what  shall  be  the  vote  of  Prussia  in 
the  Federal  Council  on  these  matters.  As  a  rule,  the 
government  is  under  no  obligation  to  consult  this 
council.^ 

In  some  of  the  other  members  of  the  empire,  notably 
in  Bavaria  and  Wiirtemberg,  a  council  of  state  is  to  be 
found,  but  as  in  Prussia  it  is  of  little  importance  as  an 
executive  council.* 


'^  Ibid.  »  Cf.  Bornhak,  Preussisches  Staatsrecht,  II.,  396. 

'  Bornhak,  op.  cit,,  II.,  396  ;  Loening,  Deutsches  Verwaltungsrecht,  70. 
*  Cf.  Stengel,  Worierbuch  des  Deutschen  Verwaltungsrecht ^  art.  Staaisrat, 


ii6  CENTRAL  ADMINISTRATION. 

II. — In  the  empire.  i 

1.  Organization, — In  the  empire  the  Federal  Coun- 
cil, which  is  also  the  upper  house  of  the  legislature, 
has,  as  an  executive  council,  a  series  of  executive 
functions  to  discharge.  While  resembling  those  dis- 
charged by  the  United  States  Senate  when  acting  in  a 
similar  capacity,  these  functions  are  of  much  greater 
importance.  So  important  indeed  are  the  executive 
functions  of  the  Federal  Council  that  some  of  the 
German  commentators  regard  the  Federal  Council  as 
the  chief  executive,  and  relegate  the  Emperor  to  the 
position  of  its  subordinate,  who  is  to  carry  out  its  de- 
cisions.O  This  body  is  composed  of  representatives 
sent  from  the  twenty-five  members  of  the  empire,'^ 
each  of  which  has  a  number  of  votes  varying  with  its 
importance.  All  the  votes  of  each  member  must  be 
cast  in  the  same  way  and  in  accordance  with  instruc- 
tions which  have  been  issued  to  its  representatives  in 
the  council  by  each  of  the  members  of  the  empire,  but 
the  council  is  not  called  upon  to  examine  into  the 
correspondence  of  the  vote  with  the  instructions 
given.^  The  council  meets  periodically  and  as  an  ex- 
ecutive council  may  meet  when  the  other  house  of  the 
legislature  is  not  in  session.*  It  is  presided  over  by 
the  imperial  chancellor,^  and  acts  either  in  general 
assembly  or  in  committees  of  which  four  are  provided 
for  by  the  constitution,  and  three  additional  by  sub- 
sequent legislation.^  The  general  principles  that 
govern  the  formation  of  these  committee^,  exclusive  of 

^  Cf.  Zorn,  op.  cit.,  I.,  136  to  142.  "  Constitution^  art.  6. 

3  Ibid.,  arts.  6  and  7  ;  Meyer,  Staatsrecht,  318  ;  Zorn,  op.  cit.,  I.,  146. 

*  Constitution,  arts,  12  and  13.  ^  Ibid.y  art.  15. 

•  Ibid.^  art.  8  ;  Zom,  op.  cit.,  I.,  148  <"/  seg. 


EXECUTIVE  COUNCIL  IN  GERMANY.         117 

that  on  foreign  affairs,  are  that  four  members  of  the 
empire  shall  be  represented  on  each  committee  besides 
Prussia,  which  presides.  The  members  of  most  of  the 
committees  are  designated  by  the  council,  though  in  a 
few  cases  the  constitution  assures  to  particular  mem- 
bers a  permanent  seat,  and  also  provides  in  other  cases 
that  the  Emperor  may  appoint  the  members  which  are 
to  be  represented.  The  committee  on  foreign  affairs 
occupies  a  peculiar  position.  It  was  formed  to  flatter 
the  amour  propre  of  Bavaria,  Wiirtemberg,  and  Saxony. 
Therefore  Prussia  is  not  represented  upon  it,  and  it  is 
composed  of  representatives  of  these  districts  and  two 
other  members  of  the  empire,  to  be  elected  by  the 
council.^  It  is  said  that  (this  committee  has  not  met 
once  in  the  history  of  the  empire ;  so  its  importance  as 
a  controlling  factor  in  the  diplomacy  of  the. empire  is 
not  very  great.^ 

2.  Functions. — The  Federal  Council  occupies  a  very 
peculiar  position.  It  may  be  regarded  as  a  branch  of 
the  legislature  and  as  an  executive  council  for  the  con- 
trol of  the  action  of  the  Emperor,  and  finally  it  must 
be  admitted  that  it  is  an  executive  authority  which 
may  take  action  irrespective  of  the  Emperor.  Its  main 
function  is,  however,  the  control  of  the  action  of  the 
Emperor. 

Like  the  United  States  Senate  the  Federal  Council 
has  a  control,  in  certain  respects  more,  in  certain  re- 
spects less,  extended,  over  the  relations  of  the  execu- 
tive, ^.  e,  the  Emperor,  with  the  federal  official  service, 
L  e.,  over  the  personnel  of  the  service.  Thus  it  par- 
ticipates either  in  general  assembly  or  in. committee  in 

*  Meyer,  Siaatsrecht^  322,  citing  the  rules  of  the  council. 

*  Zorn,  op.  cit.,  I.,  151. 


ii8  CENTRAL  ADMINISTRATION. 

the  appointment  of  certain  of  the  imperial  officers.  * 
The  appointment  itself  is  made  in  theory  by  the  Em-  \ 
peror,  but  the  Emperor  in  making  the  appointment  is 
either  limited  to  the  names  presented  by  the  council  or 
else  must  consult  with  it  or  with  one  of  its  committees. 
The  officers  appointed  in  one  or  the  other  of  these  ways 
are  the  Imperial  commissioners )to  supervise  the  collec- 
tion of  the  customs  and  the  indirect  taxes,  which  are 
collected  by  the  governments  of  the  separate  members 
of  the  empire ;  the  (judges)  of  the  imperial  court  at 
Leipsic;  the  (members  of  the  imperial  poor-law y  board, 
of  the  imperial  disciplinary) court  and  chambers,  of  the 
vin valid  fund  commission,;  and  of  the  directory  of  the 
imperial  bank.^  The  council  further  participates  in 
the  disciplinary  power  exercised  over  the  officers  of 
the  empire  and  in  the  settling  of  the  amount  of  their 
pensions.^  It  will  be  remembered  that  the  (Emperor"' 
has  not  the  arbitrary  power  of  removal,  but  that  the  ( 
official  relation  can  be  terminated  against  the  will  of  : 
the  officer  only  by  conviction  of  a  crime  or  by  the  judg- 
ment of  a  disciplinary  court,  which  may  also  inflict 
penalties  less  severe  than  discharge  from  the  service.^ 
The  supreme  disciplinary  court  is  composed  of  five 
members  of  the  imperial  court  at  Leipsic  chosen  by  the 
Federal  Council  and  of  four  members  of  the  Federal 
Council  chosen  by  it. 

The  Federal  Council  further  participates  in  the  act-: 
ual  administration  of  the  empire.  It  is  the  principal  \ 
organ  for  the  issue  of  ordinances  and  has  the  supple- ' 
mentary  ordinance  power.*     In  general  a  simple  major- 

^  Const.,  art.  36  ;  Zorn,  op.  cit.,  I.,  156,  and  authorities  cited. 

'  Ibid.,  158.  '  Supra,  p.  94. 

*  Const.,  art.  7,  sees,  2  and  3  ;  Zorn,  op.  cit.,  I.,  129. 


EXECUTIVE  COUNCIL  IN  GERMANY.         119 

ity  vote  is  all  that  is  necessary  for  the  validity  of  an 
ordinance  of  the  Federal  Council.  (In  case  of  a  tie  vote, 
the  vote  of  the  presiding  state,  Prussia,  decides, v but  in 
(certain  cases  (in  the  main  tax  and  military  matters)  the 
presiding  state  has  the  power  of  unconditionally  vetoing 
a  proposition  aiming  to  change  existing  law.^ '  While 
the  .Federal  Council  has  the  ordinance  power  in  case 
the  constitution  has  not  expressly  given  it  to  any 
other  authoritypthe  constitution  itself  in  several  cases 
gives  the  ordinance  power  to  some  other  authority  and 
also  provides  that  an  imperial  statute  may  give  some 
other  authority  the  power  to  issue  ordinances  in  partic- 
ular cases.^  Finally,  it  is  to  be  noticed  that  in  several  r 
cases,  where  the  constitution  or  the  statutes  permit  the  \ 
Emperor  to  issue  ordinances,  provision  is  made  at  the  ( 
same  time  that  such  ordinances  to  be  valid  must  have 
received  the  approval  of  the  Federal  Council.  ^ 

The  Federal  Council  has  also  (quite  a  control  over ' 
the  financial  administration  of  the  empire.)  Thus  it  | 
examines  by  means  of  one  of  its  committees  the  quar- 
terly accounts  of  the  separate  members  of  the  empire 
relative  to  the  customs  and  indirect  taxes  collected  by 
them,  and  in  general  assembly  fixes  the  amount  each 
member  shall  pay  into  the  imperial  treasury  as  a  ma- 
tricular  contribution.'*  It  is  also  to  act  as  the  highest 
instance  of  control  over  the  customs  and  indirect  tax 
administration  and  has  the  power  to  remedy  any  defect 
that  may  appear  in  the  system  of  collection.  ^  The 
Federal  Council  is  also  to  examine  the  accounts  of  the 
imperial  chancellor  so  as  to  see  whether  he  has  made 

^  Const.,  art.  7.  2  md^^  arts.  35  and  37. 

*  Jbid,^  art.  7,  sec.  2  ;  Zorn,  op.  cii.,  I.,  131.  *  Const.,  art.  39. 

'Zom,  op.  cit.,  I.,  157. 


I20  CENTRAL  ADMINISTRATION, 

proper  use  of  the  imperial  revenue  and,  in  case  every- 
thing is  in  order,  is  formally  to  relieve  him  from  all 
responsibility  therefor.^  It  exercises  a  control  over 
the  imperial  debt  and  the  imperial  bank  in  that  it 
appoints  a  certain  number  of  the  members  of  the  com- 
missions which  attend  to  these  matters.*  Its  consent* 
is  necessary  to  all  the  Emperor's  ordinances  relative  to ', 
the  war-treasure.^ 

Finally  the  Federal  Council  exercises  a  control  over) 
certain  of  the  political  acts  of  the  Emperor.     Thus  its  \ 
consent  is  necessary  for  the  declaration  of  war,  for  the  i 
making  of  certain  treaties/  and  it  is  to  decide  when  ' 
what  is  known  as  federal  execution  shall  be  decreed  ' 
against  any  member  of  the  empire  for  neglect  or  refusal 
to  discharge  its  duties  to  the  empire.^     This  is  a  power 
peculiar  to  the  German  imperial  system.    Though  more 
properly  treated  in  works  on  constitutional  than  in 
those  on  administrative  law,  its  administrative  aspects 
are  so  important  that  it  deserves  special  mention  in 
this  connection.     Different  from  the   United  States' 
constitution  the  German  imperial  constitution  recog- 
nizes expressly  in  the  imperial  government  the  right  to  \ 
enforce  by  the  army  if  necessary  the  performance  of  \ 
the  constitutional  duties  of  any  member  of  the  empire. ' 
It  is  needless  to  say  that  up  to  the  present  time  there 
has  been  no  occasion  for  the  exercise  of  this  power,/ 
but  there  may  be  a  time  when  the  express  mention  of 
such  a  power  will  be  of  great  advantage  to  the  imperial 
government  as  the  existence  of  such  a  provision  would! 

>  Const.,  art.  72. 

*  L.,  June  19,  1868,  sec.  4  ;  L.,  March  14,  1875,  sec.  5. 

*  L.,  Nov.  II,  1871,  sees,  i  and  5. 

*  Const.,  art.  11. 
'  Ibid.^  art.  19. 


EXECUTIVE  COUNCIL  IN  GERMANY.         121 

have  been  to  the  United  States  national  government 
at  the  beginning  of  the  civil  war/ 

3.  Hemedies  against  its  action, — There  are  no 
remedies  against  the  acts  of  the  Federal  Council  ex- 
cept what  are  to  be  found  in  the  power  of  the  courts 
to  declare  its  ordinances  invalid  in  case  it  attempts  to 
issue  an  ordinance  in  excess  of  its  powers.  It  would 
seem  that,  in  accordance  with  the  general  principles  of 
German  law,  the  courts  have  the  right  to  refuse  to 
enforce  an  unconstitutional  ordinance  though,  it  must 
be  said,  there  appears  to  be  no  case  in  which  the  courts 
have  so  refused.  The  decisions,  however,  show  a  tend- 
ency on  the  part  of  the  imperial  court  to  claim  such  a 
power.'^ 

*  As  to  the  difficulty  which  the  national  government  had  in  finding  some 
theory  upon  which  could  be  based  its  right  to  put  down  the  rebellion  in  1861, 
see  Dunning,  "  The  Constitution  in  Civil  War,"  in  the  Pol.  Sci.  Qu.,  I.,  163. 

'  See  Stengel,  Deutsches  Verwaltungsrecht^  180 ;  Entscheidungen  des  Reichs- 
gerichts  in  Strafsachm,  xii.,  40;  xiii.,  321. 


CHAPTER  IV. 

THE  ENGLISH  PRIVY   COUNCIL. 

/. — History, 

In  the  discussion  of  the  powers  of  the  English 
Crown  it  was  shown  that  at  the  time  the  Parliament 
was  developing  its  legislative  powers  there  was  being 
developed  a  council  which  was  to  control  the  Crown 
in  the  exercise  of  its  executive  prerogatives.  This 
council  arose  out  of  the  old  curia  regis.  While  the 
Parliament  from  the  first  tried  to  exercise  a  control 
over  the  taxing  and  legislative  power  of  the  Crown  the 
council  was  originally  formed  more  to  aid  the  Crown 
in  the  performance  of  its  administrative  and  judicial 
duties  than  to  control  its  actions/  What  its  relation 
to  the  national  council  or  Parliament  was  is  really  un- 
known.^ We  find,  however,  in  the  reign  of  Henry  I 
a  judicial  organization  called  the  curia  regis,  which, 
organized  separately  as  the  exchequer,  attended  also 
to  the  financial  administration.^  It  was  not,  however, 
till  the  minority  of  Henry  III  that  a  really  important 
council  can  be  spoken  of.*  At  that  time  its  existence 
is  clear  and  its  action  is  traceable  in  every  department 
of  work,  and  it  becomes  permanent  and  continuous. 

^  Stubbs,  Constitutional  History  of  England,  I.,  343. 
^Ibid.,  376. 

»  Ibid.,  377,  387,  and  601.  ■*  Ibid.,  II.,  255. 

122 


THE  ENGLISH  PRIVY  COUNCIL.  123 

From  that  time  on  it  contained  the  officers  of  state,  and 
of  the  household,  the  whole  judicial  staff,  a  number  of 
bishops  and  barons  and  other  members  simply  called 
councillors.  What  the  qualifications  of  the  members 
were  is  unknown.  Its  functions  were  of  a  varied 
character,  but  its  distinguishing  characteristic  was  its 
permanent  employment  as  a  court.^  It  had  also  ad- 
ministrative and  executive  duties  to  perform.  Thus 
originated  what  was  soon  afterwards  and  now  is  called 
the  Privy  Council,  which  from  the  time  of  Henry  III 
constantly  increased  its  powers  and  multiplied  its 
functions,  retiring  somewhat  into  the  background  under 
strong  kings,  coming  forward  under  weak  or  unpopular 
kings,  but  always  growing  in  power  until  it  came  to  be 
recognized  as  a  power  almost  co-ordinate  with  the 
Crown.  It  aided  the  Crown  in  the  performance  of  its 
duties  and  also  came  finally  to  exercise  a  control  over 
its  actions.^  Since  the  development  of  the  Privy 
Council  in  its  modern  form  it  has  lost  a  great  many  of 
its  powers.  Most  of  its  judicial  functions  were  taken 
from  it  at  the  time  of  the  abolition  of  the  Star  Cham- 
ber.^ Parliament  has  robbed  it  of  its  most  important 
legislative  functions,  while  an  informal  body  known 
as  the  cabinet  has  taken  from  it  actually,  though  not 
legally,  most  of  its  powers  as  the  adviser  of  the  Crown 
in  the  work  of  administration. 

//. — Organization, 

At  present  the  Privy  Council  is  composed  of  about 
two  hundred  persons  appointed  by  the  Crown.  Every 
English  subject  is  eligible  to  appointment.'^     The  ele- 

'  Ibid.,\\.,  256.  '  16  Car.,  I.,  c.  10. 

*  Ibid.,  III.,  247.  *  7  and  8  Vict.,  c.  66,  sees,  i  and  2. 


124  CENTRAL  ADMINISTRATION. 

ments  of  which  it  is  formed  are  at  present  the  same 
as  during  the  middle  ages.  These  are  the  chiefs  of  the 
various  departments,  and,  as  the  appointment  is  prac- 
tically for  life,  the  chiefs  of  departments  under  former 
administrations,  certain  judicial  officers,  and  other  im- 
portant officers,  such  as  the  Speaker  of  the  House  of 
Commons,  the  Commander-in-Chief,  and  a  large  repre- 
sentation of  the  secular  and  ecclesiastical  peerage. 
Legally  the  position  of  privy  councillor  is  only  for  the 
life  of  the  reigning  monarch  and  six  months  thereafter, 
but  re-appointment,  on  the  coming  to  the  throne  of  his 
successor,  is  made  as  a  matter  of  course.  Discharge  is 
very  infrequent.^ 

This  council  meets  once  in  three  or  four  weeks  at 
the  residence  of  the  Crown,  and  no  member  is  expected 
to  be  present  who  has  not  received  a  special  invitation. 
The  quorum  is  fixed  at  six  with  the  clerk,  whose  signa- 
ture is  authentication  of  its  deliberations.'^ 

///. — Functions. 

The  main  duty  that  the  council,  as  council,  now  has 
is  to  advise  the  Crown  as  to  the  issue  of  ordinances, 
which  are  known  on  that  account  to  the  English  law 
as  orders  in  council.  Its  approval  of  proposals  of 
ordinances  seems  to  be  necessary,  since  no  ordinance 
not  issued  in  council  is  valid.^  This  power  is  really  a 
very  important  one,  since  many  matters  are  regulated 
by  orders  in  council  which  in  this  country  are  attended 
to  by  the  legislature.  Further,  as  the  result  of  the 
development  within  this  century  of  a  central  adminis- 

*  Gneist,  Das  Englische    Verwaltungsrecht,    1884,  103  ;  cf.  Anson,   op.  cit., 

II.,  135. 
'  Gneist,  op.  cit.,  194.  »  Supra^  p.  99. 


THE  ENGLISH  PRIVY  COUNCIL.  125 

trative  control,  the  duty  is  imposed  upon  the  council 
of  examining  a  series  of  ordinances  issued  by  the  local 
authorities  whose  validity  is  made  to  depend  upon  its 
approval.^  Finally  its  members  are  the  only  constitu- 
tional advisers  of  the  Crown,  and  it  is  only  as  mem- 
bers of  the  Privy  Council  that  the  various  ministers 
are  permitted  to  advise  the  Crown.^  As  each  member 
of  the  cabinet  must  thus  be  a  privy  councillor,  it  follows 
that  the  action  and  advice  of  the  Privy  Council  are  con- 
trolled by  the  cabinet,  so  that  the  existence  of  the 
Privy  Council  does  not  in  any  way  weaken  that  re- 
sponsibility of  the  ministers  for  the  action  of  the 
Crown,  which  plays  such  an  important  role  in  the 
English  governmental  system.  Out  of  this  Privy 
Council  have  been  developed  several  boards,  which 
are  really  executive  departments.  Some  of  these,  like 
the  board  of  trade  and  the  board  of  agriculture,  are 
now  completely  separated  from  the  council,^  while 
others  have  not  yet  attained  a  similar  independence, 
but  the  president  of  the  council  is  regarded  as  respon- 
sible for  their  action.  Such  is,  e,  g,,  the  committee  of 
council  for  education,  commonly  known  as  the  educa- 
tion department.-*  Finally  we  find  the  judicial  com- 
mittee of  the  Privy  Council,  which  is  a  court  of  appeals 
for  ecclesiastical  and  colonial  cases.^ 

Mention  has  been  made  of  a  cabinet  which  practi- 
cally controls  the  action  of  the  Privy  Council.  This 
body  was  developed  largely  for  the  reason  that  the 
Privy  Council  was  too  large  a  body  to  attend  effect- 
ually to  the  work  of  administration.     Therefore  it  was 

'  Infra,  p.  260.  '  Anson,  op.  cit.y  II,,  179  et  seq.,  186. 

»  Cf.  Anson,  op.  cii.,  II.,  134.  *  Ibid.,  187. 

*  Gneist,  op.  cit.,  189. 


126  CENTRAL  ADMINISTRATION. 

the  habit  of  the  king  to  choose  a  certain  number  of 
its  members  in  whom  he  had  special  confidence  and 
from  whom  he  asked  advice.  These  met  together  in 
an  inner  room  or  cabinet  of  the  palace,  and  from  this 
circumstance  the  name  of  cabinet  was  given  to  the 
body  of  ministers  whom  the  king  chose  to  advise  him/ 
This  practice,  after  the  Restoration,  was  regarded  as  a 
dangerous  one,  but  the  cabinet  grew  more  and  more  in 
power  until  at  length  it  drew  to  itself  the  chief  execu- 
tive powers  in  the  government,  and  is  now  regarded  as 
an  essential  feature  of  the  English  polity.  Yet  it  is 
altogether  unknown  to  the  law ;  the  names  of  the  per- 
sons of  which  it  is  composed  are  never  officially  an- 
nounced to  the  public^;  no  record  is  kept  of  its 
proceedings,^  and  it  is  only  as  a  result  of  its  identity 
with  the  controlling  factors  of  the  Privy  Council  that 
it  has  any  powers.* 

*  Todd,  Parliamentary  Government  in  England^  2nd  YA.  11.,  92. 
^IHd.,  181. 

^  Ibid.,  178  ;  Macaulay,  History  of  England,  IV.,  435,  437. 

*  For  the  history  of  the  development  of  the  cabinet,  cf.  Anson,  op,  cit,^  locx 


Dwidon  8, — Heads  of  Depa/rimenta, 


CHAPTER  I. 

DISTEIBUnON    OF    BUSINESS    AND     METHOD     OF     OBGANI- 

ZATION. 

/. — Method  of  distributing  business. 

In  all  countries,  whether  the  chief  executive  author- 
ity be  the  head  of  the  administration  or  simply  the 
political  head  of  the  government,  there  are  officers  who 
are  to  attend  to  the  details  of  the  administration.  The 
name  usually  given  to  such  officers  is  that  of  ministers, 
since  they  are  generally  regarded  as  the  servants  of  the 
chief  executive  authority  and  since  it  is  through  them 
alone  that  he  can  act.  They  are  regarded  as  the  con- 
stitutional organs  of  the  executive  for  the  discharge  of 
his  powers,  and  generally  have  to  countersign  every 
one  of  his  acts  for  which  they  assume  the  responsibil- 
ity. In  addition  to  this  they  have  in  all  states  almost 
always  the  position  of  chiefs  of  particular  administra- 
tive departments  whose  affairs  they  are  to  direct.  This 
is  true  even  in  those  countries,  of  which  the  United 
States  is  an  example,  where  they  are  not  responsible 
for  the  acts  of  the  executive.  On  this  account  the 
American  law  has  chosen  for  these  officers  the  title  of 

127 


128  CENTRAL  ADMINISTRATION. 

heads  of  executive  departments.  Since  the  following 
pages  are  devoted  to  a  consideration  of  their  adminis- 
trative functions,  their  political  functions  where  they 
exist  being  relegated  for  detailed  treatment  to  consti- 
tutional law,  these  officers  will  be  considered  under  the 
title  of  heads  of  departments. 

It  has  been  shown  that  in  all  countries  there  are  five 
well  developed  branches  of  administration,  viz.,  for- 
eign, military,  judicial,  financial,  and  internal  affairs. 
All  the  different  matters  requiring  attention  from  the 
administration  will  fall  under  one  of  these  five  branches. 
It  has  come  to  be  well  recognized,  that  the  best 
arrangement  of  administrative  business  is  to  place  some 
one  authority  at  the  head  of  each  of  these  branches, 
and  where  it  is  found  by  experience  to  be  necessary  to 
make  a  further  specialization,  to  take  out  of  one  of 
these  five  departments  thus  formed  some  particular 
matter  or  matters  and  form  a  separate  department  for 
its  or  their  management.  Thus  we  generally  find  that 
the  matter  of  naval  affairs  is  taken  out  of  the  depart- 
ment of  military  affairs  and  put  in  charge  of  a  special 
department.* 

Again  we  find  that  the  care  of  public  works  is  often 
given  to  a  separate  department.  Often  also  the  ques- 
tion of  education  becomes  so  important  as  to  demand  a 
separate  authority  for  its  management.  So  also  in 
some  states  with  agriculture  and  with  commerce.  In 
all  these  cases  it  will  be  noticed  that  the  principle  of 
the  distribution  of  administrative  business  among  the 

*  In  the  United  States  naval  affairs  were  originally  in  charge  of  the  war 
department,  but  were  soon  put  in  a  special  department,  where  they  have  ever 
since  remained.  See  Guggenheimer  on  '  *  The  Development  of  Executive  De- 
partments "  in  Jameson,  Essays  in  the  Constitutional  History  of  the  United 
States y  179.    This  is  an  excellent  historical  sketch  of  the  departments. 


METHOD  OF  ORGANIZATION,  129 

departments  is  the  division  of  the  work  according  to 
its  nature ;  and  to  us  of  the  present  age  any  other 
method  of  distribution  seems  preposterous.  But  this 
method  has  not  always  been  followed.  In  most  of  the 
European  states  all  administrative  matters  were  origi- 
nally attended  to  by  one  organ,  generally  a  board  or 
council  of  some  sort.  In  this  body  the  distribution  of 
business  was  made  according  to  geographical  lines 
rather  than  according  to  the  nature  of  the  business  to 
be  transacted.^  Indeed  such  a  system  of  geographical 
division  was  in  force  in  one  of  the  English  departments 
up  to  quite  a  late  date.  Up  to  1782  the  secretariat  of 
state  was  divided  into  the  northern  and  the  southern 
departments,  and  each  division  attended  to  all  matters 
whether  internal  or  external  to  be  attended  to  in  its 
territorial  district.  But  in  1782  the  secretariat  was 
divided  into  a  foreign  and  a  home  office.^  At  the 
present  time  even,  there  are  a  few  instances  of  this 
system  of  geographical  division.  In  England  there 
are  a  secretary  for  India,^  one  for  Scotland,*  and  an 
Irish  secretary.^  In  Germany  there  is  an  office  for  the 
imperial  territory  of  Alsace-Lorraine,^  while  in  the 
Austro-Hungarian  empire  there  are  several  instances 
of  such  an  arrangement. ^ 

//. — Power  of  organization. 

An  important  question  connected  with  the  sub- 
ject of  the  departments  is  who  shall  organize  them? 
Shall  it  be  the  executive  or  the  legislative  authority 

'   Cf.  Schulze,  op.  cit.,  I.,  291. 

'  Cox,  Institutions  of  the  English  Government,  666. 

3  21  and  22  Vict.,  c.  106.  *  48  and  49  Vict.,  c.  61. 

•^  Todd,  op.  cit.,  II.,  848.  •  Zorn,  op.  cit.,  I.,  428. 

'  (jumplowicz,  Das  Oesterreichische  Siaatsrecht^  i6i. 

VOL.  I. — 9 


I30  CENTRAL  ADMINISTRATION. 

that  shall  have  the  organizing  power  ?  In  the  United 
States  it  is  the  legislature  alone  which  possesses 
the  organizing  power.  The  national  constitution 
has  not  expressly  provided  for  this  matter.  Indeed, 
the  constitution  does  not  expressly  provide  for  the 
organization  of  executive  departments,  although  it 
impliedly  recognizes  their  existence  in  two  places/ 
It  permits  the  President  to  require  the  opinion  in 
writing  of  the  heads  of  the  executive  departments,  and 
allows  Congress  to  vest  the  power  of  appointing  in- 
ferior officers  in  the  heads  of  such  departments.  The 
last  clause  cited  speaks  of  "  offices  established  by  law," 
and  has  been  interpreted  in  our  constitutional  practice 
as  giving  to  the  legislature  the  organizing  power.  In- 
deed, it  has  been  the  rule  from  the  foundation  of  the 
government  that  the  executive  departments  and  offices 
generally  may  be  established  by  Congress  only.^  Fur- 
ther, not  only  are  the  departments  themselves  organ- 
ized by  Congress,  but  also  their  internal  arrangements, 
and  the  powers  and  duties  of  their  heads  and  of  the 
heads  of  the  various  divisions  into  which  they  may  be 
divided  are  often  regulated  in  detail  by  statute,  gen- 
erally by  the  statute  organizing  the  department.  In 
some  cases  it  is  true  Congress  will  declare  that  the 
head  of  this  or  that  department  shall  do  certain  things, 
and  then  will  leave  to  him  the  organization  of  the  par- 
ticular division  which  it  is  necessary  to  form  in  order 
to  perform  the  duty  thus  placed  upon  him.  But  this 
is  now  rarely  the  case,  and  then  only  where  the  most 
unimportant   divisions   of   the   departments   are    con- 

^  Art.  ii.,  sec.  2,  pp.  i  and  2. 

'  C/.   RUttiman,   op.   cit.,   I.,  274,  citing  Benton,  Thirty  Years*  View,  II., 
678. 


METHOD  OF  ORGANIZATION.  131 

cemed.    It  was  in  this  way,  however,  tliat  some  of  our 
present  administrative  departments  were  developed. 

In  the  separate  commonwealths  there  are  seldom  to 
be  found  in  the  constitution  any  express  provisions  as 
to  the  organizing  power.  The  only  ones  relating  at 
all  to  the  departments  are  those  which  themselves  or- 
ganize the  executive  departments.  These  are  very 
commpn  and  sometimes  forbid  the  establishment  of 
new  offices.*  The  result  of  such  provisions  is  that  the 
constitution-making  authority  is  the  organizing  power, 
and  not  the  commonwealth  government  or  any  branch 
thereof.  Where,  however,  the  constitution  has  not 
made  provision,  in  accordance  with  the  usual  rule  of 
interpreting  the  constitution,  it  is  the  legislature  and 
not  the  executive  which  has  the  organizing  power. 
For  while  the  executive  is  an  authority  of  enumerated 
powers,  the  legislature  has  all  governmental  power  not 
given  to  some  other  authority,  if  the  constitution  has 
not  expressly  limited  its  powers.^  Where  the  com- 
monwealth legislature  acts,  however,  it  does  not,  as  a 
rule,  descend  into  the  same  detail  as  does  Congress. 
The  commonwealth  statutes  are  usually  absolutely 
silent  as  to  the  divisions  which  shall  exist  within  a 
given  department.  They  simply  provide  for  a  certain 
department,  and  the  legislature  each  year  or  every  two 
years  grants  in  its  appropriation  acts  a  sum  of  money 
to  the  head  of  the  department,  leaving  him  perfect 
freedom  as  to  its  distribution.  At  the  same  time  it 
must  be  noticed  that  the  departments  in  the  common- 


*  See  Nebraska  Constitution,  art.  v.,  sec.  26  ;  In  re  R.  R.  Commissioners,  15 
Neb.,  682. 

'  Bank  of  Chenango  v.  Brown,  26  N.  Y.,  469  ;  People  v.  Dayton,  55  N.  Y., 
380. 


132  CENTRAL  ADMINISTRATION, 

wealth  administration  are  much  more  special  than  the 
national  departments,  So  that  in  reality  the  facts  are 
about  the  same  in  the  commonwealth  and  the  national 
administration.  In  the  United  States,  both  in  the  na- 
tional and  the  commonwealth  government,  then,  it  is 
the  legislature  which  possesses  the  organizing  power, 
and  in  practice  it  exercises  its  power  in  such  a  way  as 
to  regulate  in  detail  the  organization  of  the  depart- 
ments. 

In  France  the  rule  is  not  the  same.  There,  with 
very  few  exceptions,  it  has  always  been  recognized 
that  the  organizing  power  belongs  to  the  chief  execu- 
tive authority,^  subject,  however,  to  the  necessity  of 
going  to  the  legislature  in  case  any  re-arrangement  of 
offices  or  the  establishment  of  new  offices  makes  neces- 
sary a  greater  expenditure  of  money. 

In  Germany  the  rule  is  the  same  as  in  France.  Of 
course  in  both  countries  the  legislature  may  act  if  it 
sees  fit  when  it  would  be  impossible  for  the  executive 
to  make  any  changes,  since  a  statute  is  always  of 
greater  force  than  an  executive  decree  or  ordinance.^ 

In  England  the  theory  seems  to  be  about  the  same 
as  upon  the  continent.^  The  only  practical  diiference 
is  to  be  found  in  the  fact  that  Parliament  has  in  most 
of  the  recent  cases  of  the  establishment  of  an  office  or 
a  department  exercised  an  organizing  power,  with  the 
result  that  most  of  the  departments  of  any  importance 
owe  their  existence  to  a  statute  and  therefore  cannot 
be  modified  by  executive  ordinance. 

'  Boeuf,  op.  cit.^  21. 

'In  some  instances  in  Germany  the  departments  are,  as  in  the  American  com- 
monwealths, fixed  by  the  constitution.  C/.,  for  the  organizing  power  in  Ger- 
many, Loening,  op.  cit.,  55-57  ;  Schulze,  op.  cit.,  I.,  297. 

^  Todd,  op.  cit.,  I.,  609-660. 


METHOD  OF  ORGANIZATION.  133 

The  method  of  organization  l^^m^  executive  would 
seem  the  preferable  one,  inasmuch  as  the  executive  is  in 
a  better  position  to  know  the  needs  of  the  administra- 
tion than  is  the  legislature,  and  is  responsible  for  vtte 
actions  of  the  administration.  Further  it  can  act  m^ 
quickly  than  can  the  legislature.  What  the  adminis- 
tration gains  in  stability  from  the  fact  of  its  being 
organized  by  the  legislature  it  loses  in  flexibility.  T^ 
control  which  the  legislature  has  over  the  finances  is 
sufficient  to  prevent  the  administration  from  incurring 
..  too  great  expense  in  any  change  that  it  may  wish  to 
make.  Indeed  the  danger  of  extravagance  on  the  part 
of  the  administration  is  not  in  modern  times  so  great 
as  it  is  on  the  part  of  the  legislature.  We  have  a  good 
instance  of  this  fact  and  of  the  disadvantages  of  giving 
to  the  legislature  the  organizing  power  in  the  conditions 
of  the  United  States  customs  service.  It  is  the  opin- 
ion of  several  of  the  secretaries  of  the  treasury  expressed 
in  their  annual  reports  that  there  is  an  unnecessary 
number  of  customs  collection  districts;  and  the  secre- 
taries have  repeatedly  recommended  to  Congress  the 
abolition  of  the  less  important  ones,  with  of  course  the 
mustering  out  of  the  service  of  the  officers  now  assigned 
to  them.  But  Congress  has  uniformly  refused  to  fol- 
low the  suggestions  of  the  secretaries ;  it  has  been 
thought  because  of  the  loss  which  would  accrue  to  the 
members  of  Congress  as  distributors  of  Federal  patron- 
age. If  the  power  of  organizing  the  official  service 
had  been  recognized  in  our  system  as  belonging  to  the 
President  we  might  hope  for  some  reform  in  the  direc- 
tion indicated,  but  so  long  as  it  is  possessed  by  Con- 
gress it  seems  almost  hopeless  to  expect  that  this  much 
needed  reform  will  be  accomplished. 


.'* 


CHAPTEE  II. 

TERM  AND  TENURE  OF  THE  HEADS  OF  DEPARTMENTS. 

The  relations  of  the  heads  of  departments  with  the 
chief  executive  authority  are  of  the  greatest  import- 
ance, for  on  their  nature  depends  whether  there  is  to 
be  a  harmonious  administration  following  out  some 
general  plan  or  whether  the  head  of  each  department 
is  to  be  a  law  unto  himself  and  is  to  be  able  to  con- 
duct the  aifairs  of  his  department  in  such  manner 
as  he  sees  fit  regardless  of  the  needs  of  other 
departments  and  of  the  wishes  of  the  chief  executive. 
These  relations  of  the  heads  of  departments  with 
the  chief  executive  are  governed 'by  two  things  almost 
entirely,  viz.,  the  term  and  the  tenure  of  office  of  the 
heads  of  departments. 

/. — In  the  United  States, 

The  constitution  of  the  United  States  and  the  con- 
stitutions of  the  commonwealths  differ  considerably  in 
this  respect.^  The  former  instrument  as  interpreted 
gives  to  the  chief  executive  the  power  to  appoint,  re- 
move, and  direct  all  the  heads  of  departments.  The 
commonwealths,  however,  have  pursued  a  different 
plan.     In  most  of  the  original  commonwealths  the  chief 

'  Supra,  pp.  62-82. 
134 


TERM  AND  TENURE,  135 

executive  did  not  have  tlie  ab|^^k  power  of  appoint- 
ing the  heads  of  the  commo^^^^Bi  deparWtents.  The 
tendency  was  to  fill  these  (SJIF^at  firsi  ^  appoint- 
ment by  the  legislature,  as  was  the  rule  originalJlUn 
some  of  the  commonwealths,  then  by  election  bj^Ke 
people,  which  is  the  rule  at  present.  It  is  said  ^  ^lat 
^'  all  the  executive  officers  are,  as  a  general  rule  in  ^11 
the  states,  elected  by  the  people  at  a  general  electicfll." 
There  are  of  course  a  few  exceptions  to  this  rule,  as,  in 
New  York,  the  superintendents  of  public  works  and 
prisons,  who  are  appointed  by  the  governor  and  senate.^ 
Finally  there  are  still  instances  of  the  appointment  of 
heads  of  departments  by  the  legislature.  Thus  in  New 
York  the  superintendent  of  public  instruction  is  ap- 
pointed at  the  present  time  in  this  way.^  As  far  as  the 
continuance  of  the  term  of  office  is  concerned,  the 
methods  adopted  in  the  commonwealths  differ  as  much 
as  the  methods  of  filling  the  offices.  But  in  most  cases 
the  term  of  office  of  the  heads  of  departments  is  fixed 
either  by  the  constitution  or  the  statutes  at  a  certain 
number  of  years.  The  term  is  not  generally  the  same  for 
all  offices,  nor  does  it  always  coincide  with  that  of  the 
governor.'*  The  result  is  that  it  is  not  necessarily  the 
case  that  all  the  officers  who  are  to  conduct  the  com- 
monwealth government  belong  to  the  same  political 
party  or  that  they  share  the  same  views  as  to  the  way 
in  which  the  commonwealth  administration  shall  be 


*  Stimson,  op.  cit.,  p.  42,  art.  20  B. 

'  Const.,  art.  v.,  sees.  3  and  4  ;  cf.  Stimson,  loc.  cit. 

^  L.,1864,  c.  555,  sec.i;  cf.  Stimson,  loc.  cit.  In  some  of  the  commonwealths 
such  a  power  is  regarded  as  unconstitutional,  as  being  in  violation  of  the  prin- 
ciple of  the  separation  of  powers.  Supra,  p.  24  ;  State  v.  Kennon,  7  Ohio  St., 
560. 

*  Supra,  p.  78. 


136  CENTRAL  ADMINISTRATION. 

conducted.  Furtlier"t^e  governor  cannot  usually  in 
case  of  conflict  prodileei  .a  uniformity  in  views  by  the 
removal  of  tlie  head  of  ;jj|  department.^ 

What  now  are  the  relations  existing  between  the 
chief  executive  authority  and  the  heads  of  departments 
in  the  American  system  of  administration  which  result 
from  this  state  of  facts  ?  In  the  national  administra- 
tion the  heads  of  the  departments  are  completely 
subordinate  to  and  dependent  upon  the  chief  executive 
authority  as  a  result  of  the  precariousness  of  their 
tenure  and  will  be  in  harmony  one  with  the  other  and 
with  the  President  on  account  of  the  fact  that  they 
have  been  chosen  by  him  to  fill  their  respective  posi- 
tions as  a  result  of  his  knowledge  of  their  opinions. 
We  find  therefore  in  the  national  administration  com- 
plete guaranties  for  an  efficient  and  harmonious  ad- 
ministration under  the  direction  of  the  President. 

In  the  commonwealths,  however,  the  case  is  quite 
different.  Each  head  of  a  department  has,  so  long  as 
he  is  not  corrupt,  the  right  to  conduct  the  affairs  of  his 
department  just  about  as  he  sees  fit ;  and  is  practically 
independent  of  the  governor  who  has  little  or  no  influ- 
ence over  affairs  of  administration.  The  constitutions 
of  some  of  the  commonwealths  have  been  honest 
enough  to  recognize  what  is  the  real  position  of  the 
governor  and  what  is  that  of  the  heads  of  the  depart- 
ments, and  devote  an  article  to  the  consideration  of  the 
"  administrative  "  officers  of  the  commonwealth,  among 
whom  the  governor  is  not  included.^  But  whether  the 
constitution  recognizes  this  or  not,  the  fact  is  the  same, 
that  the  governor  is  not  the  head  of  the  administration 

^  Supra,  p.  79. 

*  See  Florida  Constitution,  1881,  art.  5,  sec.  17. 


TERM  AND  TENURE,  137 

in  the  commonwealths  of  the  American  Union.  Ameri- 
can administrative  law  has  addied  to  the  famous  trinity 
of  Montesquieu  a  fourth  department,  viz.y  the  admin- 
istrative department,  which  is  almost  entirely  inde- 
pendent of  the  chief  executive  and  which,  as  far  as  the 
central  administration  is  concerned,  is  assigned  to  a 
number  of  officers  not  only  independent  of  the  gov- 
ernor but  also  independent  of  each  other.  This  inde- 
pendence which  each  of  the  heads  of  departments  in 
the  American  commonwealths  may  claim  under  the 
law  has  resulted  in  there  being  little  attempt  made  to 
secure  uniformity  in  administrative  action.  While  in 
the  national  government  every  President  tries  to  sur- 
round himself  with  advisers  who  have  the  same  general 
views  as  to  the  conduct  of  the  government  and  calls 
regular  meetings  of  his  heads  of  departments,  popu- 
larly termed  cabinet  meetings,  when  these  heads  of 
departments  may  exchange  opinions  on  the  important 
questions  which  come  up  before  them  for  settlement ; 
in  the  commonwealths  we  seldom  hear  of  any  such 
thing  as  a  meeting  of  the  heads  of  the  departments.^ 
Such  a  meeting  would  be  of  little  use  as  there  resides 
nowhere  the  power  to  compel  a  head  of  department  to 
change  his  opinion  so  as  to  suit  that  of  the  governor 
or  that  of  his  colleagues.  In  a  word,  in  the  common- 
wealth administration  there  are  seldom  any  guaranties 
for  efficient  and  harmonious  action  on  account  of  the 
independent  position  of  the  heads  of  departments  not 
only  over  against  the  governor,  but  also  over  against 
each  other.  This  is  not  merely  a  theoretical  objection 
to  the  commonwealth  system  of  administration.  For 
the  jealousies  and  prejudices  of  the  various  heads  of 

'  But  see  Florida  Const.,  art.  5,  sec.  17,  and  Iowa  Code,  1888,  p.  32. 


138  CENTRAL  ADMINISTRATION, 

departments  and  their  conflict  with  the  governor  do  in 
practice  not  infrequently  lead  to  an  absolute  cessation 
of  the  work  of  administration. 

//. — In  France, 

In  France,  as  in  the  United  States  national  adminis- 
tration, the  term  and  tenure  of  the  heads  of  depart- 
ments are  such  as  to  place  them  in  a  relation  of 
apparently  complete  dependence  upon  the  President. 
But  French  political  history  has  assigned  to  the  minis- 
ters a  much  more  important  role  to  play.  In  one  of 
the  constitutional  laws  now  in  force  is  contained  the 
provision  that  the  ministers  as  a  body  are  responsible 
to  the  legislature.^  This  means  that  they  must  com- 
mand the  confidence  of  the  majority  in  the  chamber  of 
deputies.  One  of  the  results  of  this  law  has  been  to 
make  the  relation  of  the  ministers,  as  a  body,  to  the 
President  one  of  great  independence.  If  no  further 
steps  were  taken  there  would  be  little  guaranty  for  a 
harmonious  and  efficient  administration  under  the  di- 
rection of  one  person.  For  each  minister  is  the  legal 
equal  of  the  others.  But  the  French  parliamentary 
system  has,  in  fact,  taken  another  step.  It  has  gradu- 
ally come  to  recognize  in  the  president  of  the  council  of 
ministers  a  superior  of  the  other  ministers.  He  it  is 
who  is  politically  the  person  exercising  the  powers 
which  the  President  has  lost  over  his  ministers  as  a  re- 
sult of  the  adoption  of  the  principle  of  the  parliamen- 
tary responsibility  of  the  ministers.  He  is  actually, 
though  not  legally,  the  chief  of  the  administration. 
Now  in  the  case  of  the  formation  of  a  new  ministry 
the  President  "  sends  for  "  some  prominent  statesman, 

*  L.,  Feb.  25,  1875,  art.  6. 


TERM  AND  TENURE.  139 

who  will  command  temporarily  at  least  the  confidence 
of  the  Chamber  of  Deputies,  and  appoints  him  president 
of  the  council  of  ministers.  As  president  of  such 
council  he  has  legally  no  greater  powers  than  his  col- 
leagues whom  he  causes  the  President  to  appoint,  but 
actually  he  it  is  who  is  the  chief  of  the  French  govern- 
ment ;  and  all  the  other  ministers  are  subordinate  to 
him.  He  has  the  power  of  forcing  them  out  of  office 
in  case  he  is  dissatisfied  with  their  actions.  For  he 
has  the  confidence  of  the  President  of  the  republic 
who  has  the  legal  powers  of  removal  and  direction. 
The  presidency  of  the  council  of  ministers  is  often 
held  by  the  minister  of  foreign  affairs. 

Such  is  the  actual  condition  of  affairs  in  the  French 
republic.  Owing  to  the  possession  by  the  President  of 
the  republic  of  the  powers  of  both  chief  of  government 
and  chief  of  administration,  and  to  the  fact  of  their 
exercise  by  the  president  of  the  council  of  ministers 
subject  to  keeping  the  confidence  of  the  Chamber  of 
Deputies  there  exist  still  guaranties  for  the  harmonious 
conduct  of  the  administration,  notwithstanding  the  real 
weakness  of  the  apparently  powerful  position  of  the 
President  of  the  republic,  through  the  adoption  of  the 
principle  of  the  parliamentary  responsibility  of  his 
ministers. 

///. — In  Germany, 

In  Germany  the  high  position  of  the  Emperor  and 
the  princes  in  their  respective  governments,  as  the 
actual  as  well  as  the  legal  chiefs  of  government  and 
administration,  ensures  the  carrying  on  of  the  govern- 
ment  harmoniously.     The   parliamentary  system   has 


I40  CENTRAL  ADMINISTRATION, 

never  taken  root  in  Germany.^  In  the  empire  the 
chancellor  is  the  only  responsible  minister.^  All  the 
other  heads  of  departments  are  simply  his  subordi- 
nates, and  are  appointed  and  dismissed  by  the  Emperor 
on  his  recommendation.^  They  are  merely  secretaries  of 
state  and  must  follow  the  directions  of  the  chancellor. 
As  the  chancellor  is  appointed  and  dismissed  by  the 
Emperor,  the  heads  of  the  imperial  departments  are 
completely  dependent  upon  the  Emperor,  and  sufficient 
guaranties  exist  for  a  harmonious  administration. 

In  the  separate  members  of  the  empire  the  condi- 
tions are  not,  however,  exactly  the  same.  While  the 
parliamentary  system  has  not  taken  root  in  Germany 
the  constitutional  system  has.  This  demands  that  the 
legally  irresponsible  prince  shall  exercise  his  powers 
through  responsible  ministers — ministers  responsible 
at  any  rate  before  the  criminal  courts.)  For  this  reason 
each  minister  must  countersign  all  important  acts  of 
the  prince  which  bear  upon  his  particular  department, 
and  thereby  assumes  the  responsibility  therefor.  The 
pendency  of  such  a  system  is  of  course  to  break  up 
somewhat  the  uniformity  and  harmony  of  the  adminis- 
tration. For  a  minister  might  block  the  action  of  the 
prince,  although  it  might  be  approved  by  his  col- 
leagues, by  refusing  his  counter-signature,  or  might  by 
his  single  advice  commit  the  prince  to  actions  which 
were  not  approved  by  his  colleagues.  Of  course  much 
of  the  danger  of  such  a  thing  is  obviated  by  the  exist- 
ence in  the  prince  of  the  power  to  dismiss  a  minister 
who  refused  to  countersign  an  act  which  the  prince 

*  Schulze,  op.  cit.,  I.,  299;  Meyer,  Staatsreckt,  184. 

'  Const.,  art.  17. 

'Zom,  op.  cit.,  I.,  2or,  citing  L.,  March  17,  1878. 


TERM  AND  TENURE.  141 

thought  was  within  his  powers.^  But  there  is  pro- 
vided a  further  guaranty  of  harmonious  administra- 
tion in  the  "  state  ministry,"  as  it  is  called.  This  is 
^composed  of  all  the  heads  of  departments  who  meet  in 
common  session,  as  a  rule  under  the  presidency  of  the 
prince,y)r  of  one  of  the  ministers  designated  by  the 
prince  and  having  the  title  of  minister-president.^  His 
position  is  not  at  all  like  that  of  the  French  president 
of  the  council  of  ministers  or  the  imperial  chancellor. 
On  the  contrary,  though  the  title  of  minister-president 
may  bring  with  it  additional  dignity,  he  has  no  greater 
legal  powers  than  any  of  the  other  ministers,  with  the 
exception  of  presiding  over  the  meetings  of  the  minis- 
try in  the  absence  of  the  prince.^  The  Wain  function 
of  the  state  ministry  is  to  preserve  harmony  and  uni- 
formity in  the  policy  of  the  administration.)  On  this 
account  it  is  generally  settled  by  law  or  ordinance 
what  matters  shall  be  decided  by  it,  while  further  the 
prince  may  generally  send  any  matter  to  it  for  decision. 
Among  the  matters  which  by  law  or  ordinance  are  to 
come  before  it  are  all  government  bills  and  drafts  of 
general  ordinances,  the  appointment  of  all  the  higher 
administrative  officers,  and  generally  all  matters  which 
do  not  come  entirely  within  the  competence  of  one 
minister.  Further,  whenever  the  views  of  one  of  the 
ministers  do  not  coincide  with  that  of  the  prince  the 
matter  is  to  be  submitted  to  the  state  ministry .-♦  \In  all 
of  these  matters,  however,  the  state  ministry  acts  sim- 

'  Cf.  Loening,  op.  cii.,  62. 

2  Ibid.,  66. 

'  Bornhak,  Preussisches  Staaisrecht,  II.,  389.  In  Prussia  an  ordinance  of 
1852  has,  however,  provided  that  in  most  matters  the  ministers  shall  communi« 
cate  with  the  king  through  the  minister-president. 

*  Loening,  op.  cii.,  67. 


142  CENTRAL  ADMINISTRATION. 

ply  as  an  advisory  body  and  simply  lays  before  the 
prince  the  result  of  its  deliberations  and  then  he  decides 
the  matter.  Its  decisions  of  themselves  have  no  legal 
force  v^hatever ;  and  never  bind  any  one  of  the  minis- 
ters v\^ho  does  not  think  that  they  are  right.  This,  it  is 
believed,  would  interfere  with  the  principle  of  the 
responsibility  of  the  ministers  for  the  acts  of  the  irre- 
sponsible prince.  But  if  a  minister  cannot  conscien- 
tiously carry  out  a  decision  of  the  state  ministry  he  is 
at  liberty  to  resign,  while,  if  he  does  not  so  resign,  the 
prince  has  the  right  to  remove  him  from  active  partici- 
pation in  the  administration.*  Such  are  the  means 
adopted  in  the  princely  governments  of  Germany  to 
secure  a  harmonious  administration.  The  position  of 
the  prince  as  the  head  of  the  administration  is  so  well 
recognized  and  his  right  to  appoint,  dismiss,  and  direct 
his  agents  is  so  well  recognized  that  theoretically  it 
might  be  said  that  the  state  ministry  was  a  useless  in- 
stitution. It  does,  however,  perform  a  useful  function 
if  it  does  nothing  more  than  make  the  advice,  which  is 
given  to  the  prince  by  the  heads  of  departments,  uni- 
form. For  it  is  only  through  the  action  of  the  minis- 
ters that  the  action  of  the  prince  has  any  political 
effects. 

IV, — In  England, 

In  England  the  heads  of  departments  are  chosen 
somewhat  in  the  same  way  as  in  France.  That  is,  the 
Crown,  on  the  occasion  of  the  resignation  of  a  ministry, 
sends  for  some  eminent  statesman  who  is  a  recognized 
leader  in  one  or  the  other  houses  of  Parliament  and  who 

*  Ibid.,  Schulze,  op.  cit.,  I.,  303. 


TERM  AND  TENURE,  143 

has  the  confidence  of  the  party  which  is  in  majority  in 
the  House  of  Commons  and  asks  him  to  form  a  ministry/ 
If  the  person  so  selected  accepts  the  trust,  he  himself 
is  to  select  his  colleagues.^  All  of  the  persons  whom 
he  selects  are  ministers  though  all  are  not  necessarily 
members  of  that  informal  board,  the  cabinet,  which,  it 
has  been  shown,  controls  the  action  of  the  Privy  Council 
and  the  Crown.  Each  is  also  a  privy  councillor,  and  it 
is  in  this  capacity  alone  that  the  ministers  may  advise 
the  Crown.  For  a  long  time  it  was  doubtful  whether 
the  cabinet  was  to  act  as  a  board  or  whether  it  was  to 
be  governed  by  the  wishes  of  the  one  member  of  it  who 
was  distinguished  from  the  rest  as  the  prime-minister 
or  premier.  Some  of  the  ministers  claimed  that  after 
their  appointment  they  were  responsible  to  the  Crown 
alone  and  were  in  a  position  of  independence  over 
against  the  prime-minister  at  whose  request  they  had 
agreed  to  act  as  ministers.  This  claim  led  to  a  conflict 
between  Lord  Palmerston  who  was  foreign  secretary 
and  Lord  John  Kussell  who  had  been  entrusted  by  the 
Queen  with  the  duty  of  forming  a  ministry  and  who 
had  chosen  Lord  Palmerston  for  the  portfolio  of  foreign 
affairs.  Lord  Palmerston  sent  off  certain  despatches 
which  had  not  received  the  approval  of  Lord  John 
Russell.  The  latter  officer  obtained  a  note  from  the 
Queen  in  which  it  was  distinctly  said  that  the  Queen 
did  not  wish  any  despatches  to  be  sent  before  they  had 
received  her  approval.  Lord  Palmerston  disobeyed  the 
order  contained  in  this  letter  and  was  dismissed  from 
office.^     This   precedent   has  finally  settled  that  the 

»  Todd,  op.  Hi.,  I.,  330.,  II.,  183.  «  IHd.,  I.,  332. 

*  For  a  full  history  of  this  episode  see  Todd,  op,   cii,,  II.,   265  et  seq,     Cf» 
also  Anson,  op,  cit,^  II.,  116  ei  seq. 


144  CENTRAL  ADMINISTRATION. 

prime-minister  is  to  direct  the  policy  of  tlie  govern- 
ment and  has  a  control  over  the  actions  of  all  the  other 
ministers  and  members  of  the  cabinet — that  their  rela- 
tion to  the  prime-minister  is  one  of  dependence.  The 
position  of  prime-minister  is  nearly  always  associated 
with  that  of  first  lord  of  the  treasury.  The  reason 
why  the  first  lord  of  the  treasury  is  generally  prime- 
minister  is  that  the  first  lord  has  no  portfolio  and 
may  devote  himself  entirely  to  the  consideration  of 
questions  of  general  policy.  Further  there  is  associated 
with  this  office  a  much  wider  power  of  appointment 
than  is  possessed  by  any  other  office  in  the  government. 
It  is  now  generally  recognized  that  the  first  lord  has 
a  control  over  all  appointments  which  may  have  an 
important  influence  on  the  general  policy  of  the  govern- 
ment. Thus  he  controls  the  appointment  of  all  im- 
portant ambassadors  and  ministers,  certain  colonial 
governors  among  whom  is  the  governor-general  of 
India,  the  commanders  of  the  army  and  navy,  the 
bishops,  and  the  presiding  justices  of  the  courts  at 
Westminster,  and  has  the  presentation  to  all  the  Crown 
benefices.^ 

From  what  has  been  said  it  will  be  seen  that  the 
acting  executive  in  England  is  the  prime-minister.  He 
controls  the  actions  of  the  members  of  the  cabinet  and 
the  ministers,  who  are  quite  dependent  upon  him  and 
who  in  their  turn  control  the  action  of  the  Crown  and 
the  Privy  Council  and  are  themselves  controlled  by 
the  necessity  of  keeping  the  confidence  of  the  party  in 
majority  in  the  House  of  Commons.  By  this  method 
of  developing  the  principle  of  parliamentary  responsi- 
bility there  are  as  in  France  sufficient  guaranties  for  a 

'  Gneist,  Das  Englische  Verwaltungsrecht,  etc.,  1884,  218,219. 


TERM  AND  TENURE.  145 

harmonious  administration  notwithstanding  that  in 
legal  theory  the  position  of  each  of  the  ministers  is  of 
equal  importance  with  that  of  any  of  the  others. 

V, — Comparison. 

This  review  of  the  relations  of  the  heads  of  depart- 
ments with  the  acting  chief  executive  shows  that  the 
almost  universal  rule  is,  that  the  heads  of  departments 
are  dependent  upon  the  chief  executive ;  and  that,  if 
dependence  is  not  absolutely  secured,  provision  of  some 
sort  is<  made  to  secure  harmony  in  the  action  of  the 
administration.  The  only  country  which  does  not 
make  some  such  provision  is  the  United  States.  Here 
though,  as  a  result  of  the  development  of  the  office  of 
Pi'esident,  the  national  administration  has  been  cen- 
tralized under  his  direction,  in  the  separate  common- 
wealths seldom  does  it  seem  to  be  considered  necessary 
to  have  an  administration  so  formed  as  either  to  shut 
out  the  possibility  of  conflict  or  to  settle  such  conflicts 
as  may  arise.  The  experience  of  the  world  is  against 
the  administrative  arrangements  in  the  commonwealths, 
and  our  own  experience  has  shown  us  that  such  an 
arrangement  leads  to  conflicts  in  the  administration 
which  not  only  diminish  its  efficiency  but  in  some  cases 
have  absolutely  caused  a  cessation  of  administrative 
work. 


CHAPTER  III. 

POWERS  AND  DUTIES  OF  HEADS  OF  DEPARTMEIH^. 

Notwithstanding  tlie  general  subordination  of  the 
heads  of  departments  to  the  control  and  direction  of 
the  chief  executive  authority,  still  in  all  countries  they 
have  a  series  of  duties,  generally  administrative  in 
character,  which  they  may  perform  largely  indepen- 
dently of  the  action  of  the  chief  executive,  in  so  far  as 
they  have  not  received  positive  directions  from  him. 
This  is  so  even  in  monarchical  governments/  More 
than  this  is  true  in  the  commonwealths  of  the  United 
States,  where  the  heads  of  departments  often  have 
functions  to  discharge  with  which  the  chief  executive 
has  little  if  any  thing  to  do.  First  to  be  mentioned 
among  their  powers  are  those  which  affect  the  person- 
nel of  the  official  service. 

/. — The  power  of  appointment. 

In  all  the  countries  under  consideration  the  law 
grants  to  each  head  of  department  the  power  to  appoint 
at  least  the  subordinate  officers  of  the  department. 
In  the  United  States  national  government  the  con- 
stitution provides  that  Congress  may  grant  to 
the    heads    of    departments    the    power    to   appoint 

'  Loaning,  op.  cii.,  62. 
146 


POWERS  AND  DUTIES.  147 

to  inferior  offices/  Numerous  laws  have  granted  to 
the  heads  of  departments  such  a  power,  so  that  now 
the  great  mass  of  the  officers  of  the  United  States 
national  government  are  appointed  by  the  heads  of  the 
departments.  Several  laws  have,  however,  limited 
this  power  in  permitting  the  President  to  issue  rules 
regulating  the  mode  of  appointment.  Notable  among 
them  is  the  civil-service  law  of  1883.  Most  of  the 
important  subordinates  of  the  heads  of  departments 
are,  however,  appointed  by  the  President  or  the  Presi- 
dent and  Senate.^ 

In  the  commonwealths  the  rule  is  the  same.  Thus, 
in  New  York  the  Public  Officers  Law  ^  declares  that  all 
subordinate  officers,  whose  appointment  is  not  other- 
wise provided  for  by  law,  shall  be  appointed  by  their 
principal  officer.  It  is  expressly  provided  by  law  that 
many  of  the  agents  of  the  central  government  in  the 
localities  shall  be  elected  by  the  people.  In  some  of 
the  commonwealths  the  power  of  appointment  of  the 
heads  of  departments  is  limited  in  the  same  way  as  in 
the  national  government.  This  is  so  in  New  York 
and  Massachusetts.* 

In  France  the  rule  is  that  the  heads  of  departments 
shall  appoint  all  but  their  most  important  subordinates 
who  are  appointed  by  the  President.  Very  few  of  the 
subordinates  of  the  departments  who  are  acting  in  the 
localities  are  elected  by  the  people  thereof.  It  is,  how- 
ever, to  be  noted  that  many  of  the  subordinate  officers 
of  the  departments  as,  e.  ^.,  the  less  important  postmas- 
ters, are  appointed  by  the  representative  of  the  central 

*  Art.  ii.,  sec.  2,  p.  2. 

^  See  United  States  Revised  Statutes,  passim. 

'  L.,  1892,  c.  681,  sec.  9.  "*  Infra,  II.,  p.  35. 


148  CENTRAL  ADMINISTRATION. 

government  in  the  localities,  viz.y  the  prefect.  He 
appoints  many  officers  who  in  this  country  would  be 
appointed  by  the  heads  of  departments.^  Where  the 
heads  of  the  departments  have  the  power  of  appoint- 
ment, they  must  be  guided  in  their  exercise  of  the 
power  by  the  rules  laid  down  in  the  decrees  of  the 
President  relative  to  the  method  of  appointment, 
which,  like  our  civil-service  rules,  require  often  that 
the  appointment  shall  be  the  result  of  a  competitive 
examination  open  to  all  persons  having  the  necessary 
qualifications.^ 

In  Germany  the  rule  is  very  much  the  same  as  in 
France.  The  law  permits  the  Emperor  or  the  prince, 
in  whom  the  constitution  vests  the  power  of  appoint- 
ment, to  delegate  the  exercise  of  this  power  to  his  sub- 
ordinates.^ But  laws  and  ordinances  lay  down  in  great 
detail  the  qualifications  of  appointment,  which  are  more 
severe  than  in  any  other  country,  especially  for  the 
higher  positions.  Finally  many  of  the  subordinates  of 
the  imperial  administration  are  appointed  by  the  com- 
monwealth governments  and  not  by  the  heads  of  the 
imperial  departments,'*  while  a  few  of  the  subordinates 
of  the  princely  governments  in  the  localities  are  elected 
indirectly  by  the  people.^ 

In  England,  too,  the  rule  is  almost  the  same.^  The 
first  lord  of  the  treasury  has  a  greater  power  of 
appointment  than  the  heads  of  the  other  departments, 

^  Aucoc,  op.  cit.y  119,  sec.  62  ;  Block,  Dictionnaire  de  V administration  /ran- 
^aise,  753. 

^  Infra,  II.,  p.  47. 

3  Imperial  Constitution,  art.  18  ;  Meyer,  Staaisrecht,  363. 

^Loening,  op.  cit.,  120  ;  Schulze,  op.  cit.,  332. 

^  Infra,  pp.  303,  307,  315. 

«Todd,  ^/.  «/.,  II.,  532. 


POWERS  AND  DUTIES,  149 

having  the  appointment  of  all  officers  who  have  an 
important  influence  on  the  government.^  Here,  as  else- 
where, the  heads  of  departments  must  be  guided  in  the 
exercise  of  their  powers  of  appointment  by  the  rules 
issued  by  the  Crown  relative  to  the  method  of  appoint- 
ment, which  for  the  purely  subordinate  positions  is 
usually  as  the  result  of  a  competitive  examination.^  In 
England  quite  a  number  of  the  subordinates  of  the 
departments  in  the  localities  are  elected  by  the  people 
of  the  localities.  This  is  true  of  the  poor-law  and 
sanitary  administration.^ 

//. —  The  power  of  removaL 

In  the  United  States  national  government  it  was 
early  laid  down  by  the  courts  that  the  power  of 
removal  was  incident  to  the  power  of  appointment."* 
Therefore  whenever  the  heads  of  departments  have  the 
appointing  power,  they  have,  in  the  absence  of  express 
statutory  provisions  to  the  contrary,  the  power  of  re- 
moval also.  The  same  rule  is  true  in  the  commonwealth 
government.5  In  not  a  few  cases,  however,  especially  in 
the  case  of  the  representatives  of  the  central  common- 
wealth government  in  the  localities,  the  duration  of 
the  office  is  fixed  by  statute.  Removal  in  these  cases 
is  made  only  for  cause,  and  then  by  the  governor  and 
not  by  the  heads  of  departments.^  Neither  in  the 
national  nor  in  the  commonwealth  government  have 

'Gneist,  Das  Englische  Verwaliungsrecht,  1884,  pp.  218,  219. 

*  In  England  these  rules  are  issued  by  the  civil-service  commission  as  a  result 
of  the  delegation  to  it  of  the  power  by  an  order  in  council.     Infra,  II.,  p.  53. 

^  Infra,  p.  248.  ^  Ex  parte  Hennen,  13  Peters,  230. 

^  People  ex  rel.  Sims  v.  Fire  Commissioners,    73  N.  Y.   437  ;   cf  Mechem, 
Law  of  Officers,  sec.  445. 

•  E.  g.  see  N.  Y.  L.,  1892,  c.  681,  sec.  23. 


I50  CENTRAL  ADMINISTRATION, 

the  civil-service  laws  attempted  to  limit  directly  the 
power  of  removal  of  the  heads  of  departments. 

In  France  the  power  of  removal  of  the  heads  of 
departments  over  their  subordinates  is  practically  com- 
plete. Whatever  officers  they  may  appoint  they  may 
also  remove.*  The  same  is  true  in  England,  where  the 
power  is  exercised  in  theory  by  the  Crown  on  the 
advice  of  responsible  ministers.^  The  power  of 
removal  of  the  head  of  one  of  the  departments  is  very 
much  greater  than  in  the  matter  of  appointment.  The 
Local  Government  Board  in  London  has  the  right  and 
the  sole  right  to  dismiss  the  subordinate  officers  of  the 
various  boards  of  poor-law  guardians — whose  appoint- 
ment is  made  by  the  guardians  subject  simply  to  the 
approval  of  the  local  government  board .^ 

In  Germany,  however,  the  power  of  removal  of  the 
heads  of  departments  is  not  nearly  so  great  as  their 
power  of  appointment.  As  has  already  been  said,  the 
German  law  generally  recognizes  office  as  a  vested  right 
which  cannot  be  taken  away  from  its  possessor  except 
as  the  result  of  conviction  of  crime,  or  of  a  judgment 
before  a  regular  disciplinary  court.'^  In  compensation 
for  the  absence  of  this  power  the  heads  of  departments 
have  the  right  to  impose  lighter  disciplinary  punish- 
ments, such  as  fines,  for  dereliction  of  duty.s 

///. — The  power  of  direction  and  supervision. 

While  the  different  countries  differ  very  little  in  the 
matters  of  the  powers  of  appointment  and  removal  of 
the  heads  of  departments  we  find  a  difference  in  the 

'  Aucoc,  op.  cit.y  I.,  119,  sec.  62.  ^  34  and  35  Vict.,  c.  70. 

*  Todd,  op.  cii.^  I.,  629,  636.  *  Supra^  p.  94. 

^  Infra,  II.,  p.  87. 


PO  WERS  AND  D  UTIES.  15 1 

extent  of  the  power  of  direction.     The  four  countries 
may  be  divided  into  two  classes. 

1.  United  States  and  England. — In  the  one  class 
composed  of  the  United  States  and  England  the  origi- 
nal conception  of  the  head  of  a  department  was  that 
of  an  officer  stationed  at  the  centre  of  the  government 
who  might  have,  it  is  true,  in  many  cases  the  powers 
of  appointment  and  removal  but  who  was  not  supposed 
to  direct  the  actions  of  the  subordinates  of  his  depart- 
ment. This  was  particularly  true  of  the  branch  of 
administration  which  has  been  designated  the  admin- 
istration of  internal  affairs,  where  it  may  be  said  that 
almost  everything  was  attended  to  in  the  localities 
and  subject  to  almost  no  central  supervision.  The 
need  of  central  instruction  and  supervision  was  not 
felt  for  the  reason  that  the  statutes  of  the  legis- 
lature descended  into  the  most  minute  details  as  to 
the  duties  and  powers  of  the  officers.  The  conception 
indeed  of  a  hierarchy  of  subordinate  and  superior  offi- 
cers was  very  dim,  if  it  existed  at  all.  This  is  seen  in 
our  national  administration  in  the  position  originally 
occupied  by  the  collectors  of  the  customs.  Though 
nominally  perhaps  the  subordinates  of  the  secretary  of 
the  treasury,  the  law  never  recognized  that  they  were 
subject  to  his  instructions  and  directions,  nor  was  it  the 
practice  to  regulate  the  administrative  details  by  means 
of  central  instructions.*  No  one,  further,  thought  in 
our  early  history  of  appealing  from  the  decision  of  a 
collector  to  the  secretary  of  the  treasury.  In  the  com- 
monwealths  the   system   was   very   much   the   same. 

^  Cf.  Report  of  the  Secretary  of  the  Treasury  on  the  Collection  of  Duties^ 
1885,  P-  xxxvii;  see  Eliot  v.  Swartout,  10  Peters,  37;  Tracy  v.  Swartout,  10 
Id.,  So. 


152  CENTRAL  ADMINISTRATION. 

Almost  all  the  administrative  matters  affecting  the 
commonwealth  were  attended  to  by  oflScers  in  the 
localities  who  were  really  quite  independent,  after  they 
had  assumed  office,  of  all  central  instruction,  notwith- 
standing the  fact  that  the  most  important  of  them  were 
originally  appointed  by  the  central  government  of  the 
commonwealth.  It  was  not  the  habit  of  the  central 
government  to  send  to  these  officers  in  the  localities 
instructions  as  to  how  they  should  act  in  the  execution 
of  the  law  whatever  might  have  been  the  actual  power 
of  the  heads  of  departments.  In  the  commonwealths 
the  system  has  remained  almost  unchanged  so  far  as  the 
officers  attending  to  the  affairs  of  the  commonwealth  in 
the  localities  are  concerned.  Indeed  their  independence 
of  the  heads  of  the  departments  of  the  central  common- 
wealth government  is  even  greater  now  than  it  origi- 
nally was,  on  account  of  the  fact  that  they  are  for  the 
most  part  elected  by  the  people  of  the  localities  in 
which  they  act.^  In  some  cases  the  law  does  recognize 
a  right  in  a  head  of  a  department  in  the  commonwealth 
to  send  instructions  to  the  officers  in  the  localities  as  to 
how  certain  branches  of  administrative  work  shall  be 
attended  to.^  These  cases  are  extremely  rare.  But 
certain  matters  which  were  either  formerly  not  attended 
to  at  all  by  the  commonwealth  administration  or  which 
were  attended  to  by  the  officers  in  the  localities  are  now 
attended  to  directly  by  the  heads  of  the  commonwealth 
departments  and  their  subordinates  who  are  under  cen- 
tral control.  Such  matters  in  New  York  are :  prisons, 
pauper  lunatics  in  most  cases,  factory  inspection,  edu- 

*  Infra^  p.  178. 

*  E.  g.^  the  comptroller  in  New  York  is  authorized  by  statute  to  make  regu- 
lations and  issue  directions  in  regard  to  the  transmission  to  the  treasury  of 
public  money.    L.,  1843,0.44. 


POWERS  AND  DUTIES.  153 

cation,  railway  supervision,  etc,,  etc.  As  to  these 
matters  the  heads  of  the  commonwealth  departments 
have  a  large  power  of  direction  sanctioned  by  the  power 
of  removal.  What  has  been  the  exception  in  the  com- 
monwealth administration  has  been  the  rule  in  the 
national  administration.  The  century  of  national  de- 
velopment has  produced  perhaps  more  change  in  this 
respect  than  in  any  other.  The  result  of  this  develop- 
ment has  been  the  recognition  of  an  official  hierarchy 
in  the  national  administration  with  the  power  in  the 
heads  of  the  departments  to  reverse  or  modify,  on 
appeal  of  persons  interested,  the  decisions  of  the 
inferior  officers  and  to  direct  them  how  to  act.^  Here 
again  the  treasury  department  offers  a  good  example. 
Now  the  collectors  of  the  customs  would  hardly  think 
of  attempting  to  apply  the  law  in  a  doubtful  case  with- 
out first  receiving  instructions  from  the  secretary  of 
the  treasury ;  '^  and  the  law  makes  an  appeal  from  the 
collector  of  internal  revenue  to  the  treasury  necessary 
before  the  aggrieved  party  has  any  standing  in  court. 
He  must  exhaust  his  administrative  remedy  before  he 
may  resort  to  his  judicial  remedy.^  The  same  thing  is 
true  in  many  cases  in  the  department  of  the  interior.* 
Finally  it  has  been  held  that  the  head  of  a  department 
may  change  the  erroneous  decision  of  a  subordinate 
officer.5 

*  See,  e.  g..  United  States  Revised  Statutes,  sec.  251 ;  Butterworth  v.  U.  S., 
112  U.  S.,  50. 

«  Cf.  U.  S.  R.  S.,  sec.  2652. 

*  U.  S,  R.  S.,  sec.  3226  ;  this  was  the  case  also  in  the  customs  administration 
until  the  passage  of  the  late  administrative  bill,  which  has  taken  away  the  ad- 
ministrative remedy  of  appeal  to  the  secretary  and  has  provided  an  appeal  to  the 
appraisers.  Cf.  Goss,  '*  History  of  Tariff  Administration  in  the  United  States," 
in  Studies  in  History^  Economics,  and  Public  Law,  I.,  155. 

*  Jbid.,  sec.  2273.  *  U.  S.  v.  Cobb,  11  Fed.  Rep.,  76. 


154  CENTRAL  ADMINISTRATION. 

In  England  the  development  that  is  to  be  noticed 
in  this  country  has  also  taken  place,  but  even  to  a 
greater  extent.  The  reform  of  the  system  of  local 
government  since  1834^  has  made  the  English  admin- 
istrative system  one  of  the  most  centralized  in  existence. 
The  new  department  of  the  interior,  i.  e,  the  local 
government  board,  and  also  the  treasury  have  the  most 
extended  right  of  direction  and  control  over  the  numer- 
ous local  boards  which  attend  to  aifairs  in  the  locali- 
ties. This  has  not  failed  to  have  its  influence  on  the 
other  departments,  and  at  the  present  time  the  best 
authority  on  English  administrative  law.  Professor 
Gneist,  lays  it  down  as  a  rule  ^  that  the  English  heads  of 
departments  have  a  very  wide  power  of  issuing  instruc- 
tions and  directions  to  their  subordinates  throughout 
the  land  and  thus  of  guiding  the  action  of  inferior 
administrative  officers. 

2.  In  Framce  and  Germany. — In  France  and  Ger- 
many, contrary  to  the  original  rule  in  England  and 
the  United  States,  the  officers  of  the  central  govern- 
ment have  always  had  the  right  to  issue  instructions 
to  their  subordinates,  among  whom  were  many  officers 
who  in  England  and  the  United  States  would  be  con- 
sidered local  officers,  since  the  central  government  has 
had  almost  from  the  beginning  many  representatives 
in  the  localities,  who  were  regarded  as  distinctively 
central  officers.^  The  long  existence  of  such  a  system 
has  naturally  given  to  the  instructions  and  directions 
of  the  heads  of  departments  a  much  greater  impor- 
tance than  they  have  ever  had  in  this  country  or  in 

*  Infray  p.  236. 

^  Das  Englische  Verwaltungsrecht^  I.,  354  et  seq. 

^  Aucoc,  op.  cit.,  I.,  89,  119  ;  Stengel,  Deutsches  Verwaltungsrecht,  163, 164. 


POWERS  AND  DUTIES.  155 

England.  The  laws  have  never  gone  into  such  detail 
as  with  us  in  regard  to  the  duties  of  the  officers,  but 
have  left  these  to  be  filled  out  by  ordinance  and  in- 
structions/ Indeed  it  would  be  almost  impossible  to 
understand  much  of  the  administrative  law  without  a 
reference  to  these  ministerial  circulars  of  instructions 
and  directions.  Germany  and  France  have  thus  from 
the  beginning  possessed  a  most  centralized  system  of 
administration.  Now  while  the  tendency  in  the  United 
States  and  England  has  been  towards  administrative 
centralization,  the  tendency  in  France  and  Germany 
has  been  towards  administrative  decentralization. 
Within  the  last  twenty  years  many  matters  which  for- 
merly were  regulated  by  the  instructions  of  the  heads 
of  departments  have  been  put  into  the  hands  of  the 
officers  of  the  localities  to  be  attended  to  in  their  own 
discretion,  subject,  it  is  true,  at  times  to  the  supervision 
of  the  heads  of  the  departments.^ 

The  heads  of  departments  in  the  four  countries 
have  thus  the  power  of  direction.  The  only  excep- 
tion is  the  case  of  the  heads  of  departments  in  the 
commonwealths  in  the  United  States,  who  do  not, 
as  a  general  thing,  have  any  power  of  directing  their 
subordinates  in  the  localities  how  they  shall  execute 
the  laws. 

The  heads  of  departments,  like  the  chief  executive 
authority,  have  a  class  of  material  as  well  as  personal 
powers — that  is,  they  have  direct  powers  in  connection 
with  the  administrative  services  attended  to  by  the 
government.     Among  these  may  be  mentioned : 

*  Cf.  Dicey,   The  Law  of  the  Constitution,  3d.  Ed.,  50. 

'  Boeuf,  op,  cit.,  118  ;  De  Grais,  Handbuch  der  Verfassung  und  Verwaliung^ 
1883,  p.  54- 


156  CENTRAL  ADMINISTRATION. 

IV. —  The  ordinance  power. 

In  all  countries  the  heads  of  departments  have  a 
delegated  but  only  a  delegated  ordinance  power.  This 
is  true  even  in  the  United  States  where  very  few 
matters  comparatively  are  regulated  by  ordinance.  In 
the  national  government  in  many  cases,  Congress  has 
delegated  to  the  heads  of  departments  the  power  to 
regulate  by  general  orders  the  details  of  the  adminis- 
trative law;  and  when  such  a  delegation  has  been 
made  the  regulations  issued  as  a  result  of  it  have  a 
force  even  upon  individuals  equal  to  that  of  statute.* 
Where  such  regulations  are  not  clearly  based  on  some 
legal  provision  giving  the  power  to  issue  them  the 
courts  do  not  hesitate  to  declare  them  void  when  they 
come  before  them  for  enforcement.^  In  the  separate 
commonwealths  of  the  United  States  the  ordinance 
power  of  the  heads  of  departments  is  not  a  large  one 
because  the  legislature  has  not  seen  fit  to  grant  to 
them  this  power.  In  foreign  countries  also  the  rule 
seems  to  be  the  same  with  perhaps  the  exception  of 
England,  where  matters  are  often  regulated  by  the 
head  of  a  department  which  on  the  continent  would 
be  regulated  by  executive  ordinance.  But  even  in  our 
national  government  the  administrative  regulations, 
which  are  issued  by  the  heads  of  departments  as  a 
result  of  their  possession  of  the  delegated  ordinance 
power,  are  regarded  by  the  courts  as  the  acts  of  the 
President,  who  is  supposed  to  have  acted  through  the 
heads   of  departments.^    These  ordinances   are  to  be 

*  E.  g.  U.  S.  R.  S.,  sec.  251  ;  United  States  v.  Barrows,  I.  Abbott,  U.  S., 
351,  Exparte  Reed,  100  U.  S.,  13,  23  ;  citing  Gratiot  v.  U.  S.,  4  How.,  80. 

'Little  V.  Barreme,  2  Cranch,  170;  Ex  parte  Field,  5  Blatchford,  63; 
Campbell  V.  U.  S.,  107  U.  S.,  407. 

^  Willcox  V.  Jackson,  13  Peters,  498  ;  supra,  p.  73. 


PO  WERS  AND  D  UTIES.  1 5  7 

distinguished  from  ministerial  circulars  or  instructions, 
which,  while  general  in  character  like  the  ordinances, 
are  not  like  the  ordinances  binding  upon  the  individual 
but  only  upon  the  officers  subjected  to  the  power  of 
direction  of  the  head  of  the  department.  Such  instruc- 
tions are  based  on  this  power  of  direction.^  In  Europe 
the  distinction  between  these  two  kinds  of  acts  is  much 
clearer  than  in  this  country,  but  even  in  the  United 
States  the  United  States  District  Court  has  held  that 
regulations  of  departments  for  the  transaction  of  their 
business  are  subject,  if  they  are  unjust,  to  revision  by 
the  courts  at  the  instance  of  individuals  who,  it  would 
seem,  are  not  in  such  a  case  bound  by  them.^ 

V. — Special  acts  of  individual  application. 

In  addition  to  these  general  acts,  the  heads  of 
departments  must,  in  order  to  discharge  the 
functions  given  to  them,  perform  many  special  acts. 
They  have  to  make  most  of  the  contracts  which  are 
made  by  the  government ;  they  must  issue  orders 
affecting  only  one  case;  they  must  make  decisions 
either  of  their  own  motion  or  on  the  appeal  of  inter- 
ested parties.  The  position  of  the  heads  of  depart- 
ments is  in  this  respect  essentially  the  same  in  all 
countries.  In  both  the  continental  countries  it  has 
for  a  long  time  been  recognized  that  any  individual 
who  deems  himself  aggrieved  by  a  decision  of 
a  subordinate  officer  may  appeal  to  the  head  of 
the  department  to  have  the  objectionable  deci- 
sion reversed.     This  appeal  is  always  allowed  even 

*  Boeuf,  op.  cii.,  28. 

'  U.  S.  v.,  Cadwalader,  Gilp.,  563,  577. 


158  CENTRAL  ADMINISTRATION. 

where  the  law  has  not  specifically  authorized  the 
taking  of  such  an  appeal.^  The  reason  of  the  existence 
of  this  right  in  the  individual  is  to  be  found  in  the 
hierarchical  character  of  the  administrative  system 
with  the  monarch  originally  at  the  head,  to  whom  as 
fountain  of  justice  the  individual  always  had  the  right 
to  present  a  petition  for  justice.  In  this  country,  also, 
although  the  administration  was  not  hierarchically 
organized  originally,  it  would  seem  that  the  head  of  a 
department  possesses  the  power  to  hear  appeals  from 
subordinates'  decisions.  This  power  has  been  given  by 
statute  in  numerous  instances  in  the  national  administra- 
tion but  not  often  in  the  commonwealth  administration, 
and  it  is  held  that  the  power  of  direction  and  control 
gives  the  power  to  hear  appeals  and  correct  mistakes.^ 

VL — Remedies. 
In  only  one  of  the  four  countries  is  there  recognized  a 
direct  remedy  against  the  general  acts  of  the  heads  of 
departments.  That  country  is  France  where  any  one 
may  appeal  to  the  council  of  state  to  have  an  objection- 
able ordinance  quashed  on  the  ground  that  it  has  been 
issued  by  the  head  of  a  department  in  excess  of  his 
powers.  In  all  the  other  countries,  as  well  as  in  France 
also,  the  courts  have  the  right  collaterally  to  declare 
an  ordinance  void  which  has  been  issued  in  excess  of 
powers.^    In  almost  all  the  countries,  in  fact  all  except 

*  Boeuf,  op.  aV.,  28  ;  Loening,  op.  cit.,  794. 

*  Butterworth  v.  U.  S.,  112  U.  S.,  50,  57,  which  discusses  the  appellate  power 
of  the  secretary  of  the  interior  in  patent  matters.  Here,  it  is  said,  that  '*  the 
official  duty  of  direction  and  supervision  implies  a  correlative  right  of  appeal 
,  .  .  in  every  case  of  complaint  although  no  such  appeal  is  expressly  given." 
See  also  Bell  v.  Hearne,  19  How.,  252. 

'  For  American  cases  see  supra,  p.  74.  See  also  Stengel,  Deutsches  VernualU 
ungsrecht,  180  ;  French  Code  Pinal,  art.  471,  sec.  15. 


PO  WERS  AND  D UTIES.  159 

Germany,  there  is  a  remedy  against  the  special  acts  of 
the  heads  of  departments.  In  England  and  the  United 
States  this  remedy  is  to  be  found  in  an  appeal  in  the 
proper  form  to  the  courts  to  overturn  or  modify  the 
act  complained  of.^  In  France  the  appeal  goes  to  the 
council  of  state  acting  as  an  administrative  court.^ 

VII. — Local  subordinates  of  the  executive  departments. 

In  all  countries  certain  of  the  executive  departments 
have  scattered  about  the  country  in  the  districts,  into 
which  it  has  for  this  purpose  been  divided,  subordinate 
officers  who  act  under  the  direction  and  control  of  the 
heads  of  departments.  Thus  in  the  United  States 
national  administration  the  treasury  department  has  its 
collectors,  naval  officers,  surveyors,  inspectors,  measur- 
ers, weighers,  and  gangers  in  the  customs  and  internal- 
revenue  districts;  the  department  of  the  interior,  its 
land  receivers  and  registers  and  Indian  agents,  etc..,  etc. 
The  national  administration  is  highly  centralized,  rarely 
making  use  of  the  officers  of  the  commonwealth  or 
of  the  various  local  corporations  within  the  common- 
wealths, such  as  the  counties  and  the  towns.  While 
this  is  also  true  of  certain  branches  of  administration 
in  the  commonwealths  of  the  United  States^  and  for- 
eign countries,*  still  in  many  cases  the  central  govern- 
ment, if  the  government  is  a  federal  one  as  in  Germany, 
makes  use  of  commonwealth  officers,^  or  it  imposes  a 
series  of  duties  upon  officers  who  are  at  the  same  time 

^  Infra,  II.,  p.  209. 
2/w/ra,  II.,  pp.  229,  238. 

•  As,  e,  g. ,  in  New  York,  the  factory  inspectors  of  the  labor  commissioner, 
and  the  various  agents  of  the  department  of  public  works. 

*  For  France  see  Aucoc,  op.  cii.,  I.,  182. 

'  As,  e.  g.,  in  the  case  of  the  customs  and  the  internal  indirect  taxes. 


i6o  CENTRAL  ADMINISTRATION. 

officers  of  the  local  corporations  or  even  upon  such  local 
corporations  themselves.  Thus  in  the  commonwealths 
of  the  United  States  the  commonwealth  central  govern- 
ment often  uses  county  and  town  officers  and  the 
counties  and  towns  themselves — these  bodies  are  indeed 
primarily  administrative  districts  for  the  purposes  of  the 
general  commonwealth  administration  ^ — as  its  agents 
for  a  series  of  purposes.  For  example,  in  most  of  the 
commonwealths  the  counties  and  the  towns  attend  to  the 
financial  administration  of  the  commonwealth  as  a 
whole,  defray  most  of  the  expenses  of  the  judicial 
administration,  take  care  of  the  poor,  etc.^  etc.,  while 
the  county  authority  is  not  uncommonly  made  the 
board  of  canvassers  for  general  elections.  The  only 
great  difference  between  the  English  and  American 
system  on  the  one  hand  and  the  continental  system  on 
the  other,  is  that  the  control  which  the  central  executive 
departments  have  over  such  local  corporations  and  their 
officers,  both  when  acting  as  the  agents  of  the  central 
administration  and  when  acting  as  the  agents  of  the 
local  corporations,  is  much  less  extensive  in  the  former 
than  in  the  latter.  In  the  United  States  and  England 
most  of  the  local  corporations  elect  their  own  officers, 
who,  even  when  acting  as  they  so  often  do  as  agents  of 
the  central  administration,  are  quite  independent  of  the 
heads  of  the  central  executive  departments  ^ ;  while  on 
the  continent  such  officers  are  often  appointed  by  the 
central  government  and  act  in  all  cases  more  or  less 
under  its  control.^  Though  not  so  centralized  usually 
as  the  United  States  national  administration,  the  con- 
tinental system  is  much  more  centralized  than  either 
the  English  or  the  United  States  commonwealth  sys- 

^  Infra,  p.  173.  ^  Infra,  p.  228.  ^  Infra,  pp.  273,  315. 


PO  WERS  AND  D  UTIES.  1 6 1 

tern.  It  must,  however,  be  said  tliat  the  tendency  in 
England  is  to  put  the  local  corporations  and  their 
officers  under  a  strict  central  control,  especially  when 
they  are  acting  as  the  agents  of  the  central  government  * ; 
while  the  latest  steps  taken  in  Germany  tend  greatly 
to  relax  the  formerly  strong  central  control. 

*  Infra,  p.  259. 


BOOK  III. 
LOCAL  ADMINISTKATIOK 


CHAPTER  L 

HISTORY     OF     RURAL     LOCAL     ADMINISTRATION     IN     THE 
UNITED    STATES. 

/. — History  of  rural  local  administration  in  England  to  the 
eighteenth  century, 

1.  The  sheriff. — The  character  of  the  English  sys- 
tem of  local  government  was  fixed  by  the  Norman 
kings.  The  absolutism  of  the  Norman  government 
reduced  all  classes  of  the  inhabitants  to  complete  sub- 
mission to  the  Crown.^  On  account  of  the  race  conflict 
between  Norman  and  Saxon,  the  Crown  was  obliged 
to  establish  some  system  of  government  by  means  of 
which  the  peace  might  be  preserved  and  the  King  might 
act  as  the  impartial  arbiter  between  the  conflicting 
race  elements  of  the  nation.^  The  King  therefore  dis- 
tricted the  kingdom,  using  in  the  main  the  old  divi- 
sions, i,  e.,  shires  which  had  come  down  from  Anglo- 
Saxon  times,  and  placed  in  each  district  an  officer  on 

^Stubbs,  op.  cit.,  I.,  257,  259,  note  i  ;  260,  338  ;  cf.  Goodnow,  "  Local  Gov- 
ernment in  England"  in  Pol.  Sci.  Qu.,  II.,  638, 

*  Gneist,  Self  government,  Communalverfassung  und  Verwaliungsgerichte^  14, 

162 


HISTORY  OF  LOCAL  ADMINISTRATION.      163 

whom  he  could  rely  to  cany  out  his  plans  and  enforce 
his  orders.  Such  districts  were  not  considered  to  be 
public  corporations.  They  had  no  affairs  of  their  own 
to  attend  to,  but  all  administrative  business  was  at- 
tended to  by  royal  officers  placed  within  them,  to  wit, 
the  sheriffs  or  vice-comites}  The  sheriff  was  always 
an  unpopular  officer;  he  was  therefore  gradually 
stripped  of  his  powers  and  a  system  of  administration 
established  which  was  more  popular  in  character.  But 
before  this  was  done  the  strong  centralized  administra- 
tion of  the  Normans  had  consolidated  the  people  of 
England  into  a  nation.  This  was  accomplished  in 
England  much  sooner  than  on  the  continent.  As  a 
result  of  the  centralization,  autonomous  communities 
had  no  opportunity  to  develop,  and  though  the  admin- 
istrative system  later  became  really  quite  decentralized, 
the  same  general  principles  remained  true,  i,  e.,  the 
localities  remained  simply  administrative  districts 
without  juristic  personality  and  with  no  affairs  of 
their  own  to  attend  to,  districts  in  which  royal  officer 
attended  to  all  administrative  business.  The  prefec- 
toral  administration  of  the  sheriffs  lasted  from  the 
time  of  the  conquest  to  about  the  reign  of  Richard  II, 
when  changes  were  made  which  reduced  the  sheriff  to 
the  position  of  a  ministerial  officer  of  the  royal  courts, 
which  had  sprung  up  in  the,  meantime,  a  returning 
officer  for  elections  and  a  conservator  of  the  peace.^ 
These  changes  are  to  be  found  in  the  establishment  of 
the  office  of  the  justice  of  the  peace,^  and  the  subse- 
quent enlargement  of  its  powers. 

^Stubbs,  op.  cit.,  I.,  276;   cf.  Pol.  Set.  Qu.,  II.,  639. 

'^  See  Anson,  op.  Hi.,  II.,  236. 

334  Edward  III,  c.  I.  ;  cf.  Pol.  Set.  Qu.,  II.,  644,  and  authorities  cited. 


i64  LOCAL   ADMLNISTRATLON. 

2.  The  justice  of  the  'peace, — To  the  justices  of  the 
peace  were  given  most  of  the  powers  of  the  sheriff. 
They  further  gained  control  of  the  parish  administra- 
tion which  sprang  up  in  the  times  of  the  Tudors  in 
connection  with  the  church,  and  in  their  courts  of 
quarter  sessions  acted  as  the  county  authority.  They 
were  finally  by  far  the  most  important  officers  in  the 
localities,  discharging  both  administrative  and  judicial 
functions,  and  having  under  their  direction  almost  all 
other  officers  in  the  localities.  The  system  whose 
whole  tone  was  given  by  the  justices  of  the  peace  was 
much  more  decentralized  than  the  prefectoral  system 
of  the  sheriffs.  All  the  officers  were  chosen  in  the 
localities  in  which  they  acted.  Most  of  them,  it  is 
true,  were  appointed  directly  or  indirectly  by  the  cen- 
tral government,  and  could  be  removed  by  it.  But 
the  fact  that  they  received  no  salary,  although  service 
as  a  rule  was  obligatory  and  arduous,  and  that  they 
were  chosen  from  the  well-to-do  classes  made  the  per- 
sonnel of  the  service  after  all  very  independent,  and 
kept  it  from  falling  into  bureaucratic  ways.  For  the 
threat  of  dismissal  from  office  had  little  terror  for  a 
justice  of  the  peace.  Dismissal  meant  relief  from 
arduous  service  and  not  the  loss  of  a  means  of  liveli- 
hood. The  system  thus  really  secured  a  high  degree 
of  local  self-government.  The  independence  of  the 
justices  brought  it  about  that  the  control  over  their 
actions,  which  could  be  exercised  by  the  central  admin- 
istration, amounted  to  almost  nothing  finally.  To  pro- 
vide for  some  sort  of  central  control  the  statutes  of 
Parliament,  regulating  the  powers  and  duties  of  the 
justices,  had  to  descend  into  the  most  minute  details. 
That  the  justices  acted  in  accordance  with  these  de- 


HISTORY  OF  LOCAL  ADMINISTRATION,        165 

tailed  statutes  was  ensured  by  the  control  given  to  the 
royal  courts  over  their  action,  by  means  of  which  the 
courts  might,  on  the  application  of  any  person  ag- 
grieved by  the  action  of  the  justices,  force  them  to  act 
as  the  law  required  or  else  quash  their  illegal  action.^ 

//. — The  development  of  the  system  in  the  United  States, 

1.  The  three  original  forms  of  local  ad/minisl/ration, 
— The  justice  of  the  peace  system  was  in  full  force  at 
the  time  of  the  colonization  of  North  America.  It  is 
only  natural  that  its  main  features  should  characterize 
the  original  system  of  American  local  administration. 
We  find,  however,  three  pretty  distinct  forms  of  it  in 
the  different  colonies,  one  in  the  New  England  colonies, 
one  in  the  middle  colonies,  and  a  third  in  the  southern 
colonies.  The  main  distinction  between  these  three 
forms  is  to  be  found  in  the  relative  position  which  was 
assigned  to  the  areas  adopted  for  the  purpose  of  ad- 
ministration. In  New  England  while  the  county  was 
recognized  '^  it  was  not  nearly  so  important  as  the  town 
which  was  the  other  area.  The  town  may  be  taken  as 
the  American  type  of  the  English  parish  but  it  cannot 
be  regarded  as  the  legal  successor  of  the  parish.  It  is 
really  the  creation  of  American  statute  law,  and  thus 
the  principles  of  the  common  law  applicable  to  the 
English  parish  may  not  be  applied  to  the  American 
town.^  The  town  resembles  the  Anglo-Saxon  tunscipe, 
indeed  more  than  the  English  parish.   This  resemblance 

1  Pol.  Sci.  Qu.,  II.,  648  ;  infra,  II.,  p.  200. 

2  Howard  in  his  Local  Constitutional  History  of  the  United  States,  I.,  320, 
says  that  the  county  was  formed  in  Rhode  Island  in  1703,  but  was  comparatively 
unimportant.  In  Massachusetts,  however,  it  is  found  as  early  as  1635.  See  9 
Gray,  512  note. 

»  Morey  v.  Town  of  Newfane,  8  Barb.  N.  Y.,  645,  648. 


i66  ^    LOCAL   ADMINISTRATION. 

to  its  old  Teutonic  prototype  would  seem  to  be  due 
more  to  the  fact  that  the  American  colonists  had  to 
face  conditions  similar  to  those  before  their  German 
forefathers  than  to  any  conscious  imitation  on  their 
part  of  Saxon  institutions. 

In  the  middle  colonies  also  we  find  both  the  town 
and  the  county.  But  the  functions  of  administration 
were  quite  equally  distributed  between  them  or  else 
the  town  was  less  important  than  the  county.  The 
latter  was  especially  true  of  Pennsylvania,  where  the 
town  was  not  established  until  the  latter  part  of  the 
eighteenth  century  and  after  its  establishment  was 
much  less  important  than  the  New  England  town.^ 

In  the  south  social  conditions  were  such  as  to  neces- 
sitate the  existence  of  the  county  alone  and  to  prevent 
the  development  during  the  colonial  period  of  any  lesser 
administrative  area  at  all. 

2.  The  early  American  county.— The  county  was 
found  in  all  the  American  colonies  with  the  exception 
perhaps  of  some  of  the  New  England  colonies  where, 
if  it  existed  at  all  as  an  administrative  district,  it  existed 
in  a  very  rudimentary  form.  Wherever  the  county 
did  exist  as  an  administrative  district  the  county 
authority  was,  as  in  England,  the  court  of  sessions  of 
the  justices  of  the  peace  who  were  appointed  by  the 
governor  of  the  colony.^  By  the  side  of  the  justices  of 
the  peace  was  the  sheriff  occupying  a  position  similar 
to  that  of  the  English  sheriff  of  the  same  period.  That 
is,  he  was  a  conservator  of  the  peace,  the  returning 
officer  for  elections,  and  the  ministerial  officer  of  the 

*  Howard,  <5>.  cit,  I.,  385. 

*  For  New  York  see  Documents  Relating  to  the  Colonial  History  of  New  Yorky 
IV.,  25  ;  cf.  Howard,  I.,  406. 


HISTORY  OF  LOCAL  ADMINISTRATION.      167 

courts.  He  was  appointed  also  by  tlie  governor.*  In 
the  court  of  sessions  were  centred  about  all  the  ad- 
ministrative duties  relating  to  the  county.  In  this 
court  the  justices  appointed  some  person  to  be  county 
treasurer,  attended  to  the  county  finances  and  supervised 
the  administration  of  the  poor-law.  Acting  separately 
they  had  charge  of  police  and  highway  matters  and 
directed  the  actions  of  a  great  number  of  subordinates 
who  had  duties  relative  to  these  matters. 

The  first  change  to  be  noticed  in  the  county  organiza- 
tion is  the  substitution  of  officers  elected  by  the  people 
of  the  county  for  these  appointed  justices.  This  be- 
gins in  New  York  certainly  as  early  as  1691,  and 
probably  as  early  as  1683.^  In  1691  an  officer  called 
a  supervisor  was  to  be  elected  in  each  town.  His 
name  comes  from  the  fact  that  when  these  officers  from 
each  of  the  towns  in  the  county  were  assembled  to- 
gether they  formed  the  county  board,  and  were  to 
^*  supervise  and  examine  the  publick  and  necessary 
charge  of  each  county."  ^  The  motive  for  this  change 
was  probably  to  provide  for  the  co-existence  of  local 
representation  with  local  taxation,  since  the  main  duties 
of  the  first  board  of  supervisors  were  relative  to  the 


*  See  Brodhead,  History  of  New  York,  I.,  63,  and  authorities  cited. 

'  See  Laws  of  1691,  c.  vi.  There  is  in  the  office  of  the  secretary  of  state 
of  New  York  a  manuscript  law  of  the  date  of  November  2,  1683,  which  provides 
that  there  should  be  elected  in  each  town  persons  "  for  the  superviseing  of  the 
publique  affaires  and  charge  of  each  respective  towne  and  county."  But  as  the 
assembly  in  New  York  previous  to  1691  was  an  almost  extra  legal-body,  it  is 
safer  to  set  the  introduction  of  the  elective  principle  in  the  county  organization 
at  1691. 

2  This  system  was  abolished  ten  years  later  by  Laws,  1701,  c.  96,  but  was  re- 
introduced by  Law  of  June  19,  1703.  This  accounts  for  the  mistake  which  is  so 
commonly  made  of  assigning  1703  as  the  date^of  the  introduction  of  the  super- 
visor system  in  New  York. 


i68  LOCAL  ADMINISTRATION. 

fiscal  administration  of  the  county/  The  justices  still 
retained  important  functions  in  other  administrative 
branches,  such  as  highways.^  A  little  later  the  elective 
system  was  introduced  into  Pennsylvania  but  in  a 
somewhat  different  form,  the  towns  not  being  repre- 
sented on  the  county  board,  probably  on  account  of 
their  unimportance.  In  1724  provision  was  made  for 
the  election  by  the  people  of  the  county  of  three  com- 
missioners who  were  to  manage  the  fiscal  affairs  of  the 
county.^  Sheriffs  were  also  elected  by  the  people  in 
Pennsylvania  from  an  early  time.*  This  change  in  the 
county  organization  was  destined  to  have  a  profound 
influence  on  the  subsequent  development  of  local  ad- 
ministration in  the  United  States.  As  Professor 
Howard  well  says  * :  "To  New  York  first,  and  next  to 
Pennsylvania  belongs  the  honor  of  predetermining  the 
character  of  local  government  in  the  west.  But  if 
New  York  was  first  to  return  to  the  ancient  practice 
of  township  representation  in  the  county  court  it  was 
in  Pennsylvania  that  the  capabilities  of  the  indepen- 
dent county  were  first  tested.  Here  the  principle  of 
election  to  county  offices  was  carried  farther  than  it 
was  ever  carried  in  England."  New  York  is  the  parent 
of  the  supervisor  system.     On  the  other  hand  Penn- 

*  See  New  York  Law  of  November  i,  1722,  where  it  says  :  "  Whereas  by  that 
means,"  i.  e.  the  method  of  voting  provided  by  the  act  of  1703,  "the  inhabi- 
tants of  several  manors,  Liberties  and  Precincts  which  bear  a  considerable  share 
of  the  county  rate  have  not  the  liberty  of  chusing  their  own  Supervisors,  be  it 
enacted  "  that  they  may  vote  in  the  town  adjoining  the  manor,  etc, 

2  Cf.  Howard,  I.,  362. 

*  Ibid.,  I.,  382. 

*  Ibid.,  I.,  384,  and  authorities  cited. 
^Ibid.,  L,  387. 

*  It  is,  however,  to  be  noted  that  the  New  York  law  of  1683,  above  referred 
to,  provided  that  the  county  treasurer  should  be  elected  by  the  voters  of  the 
county. 


HISTORY  OF  LOCAL  ADMINISTRATION.      169 

sylvania  is  the  originator  of  the  commissioner  system." 
The  elective  system  thus  introduced  into  New  York 
and  Pennsylvania  has  been  adopted  in  almost  every 
commonwealth,  and  has  been  extended  to  almost  all 
county  offices  at  the  present  time,  not  only  the  original 
county  offices  but  also  those  which  the  increase  of 
the  work  of  administration  has  caused  to  be  provided. 
3.  The  ea/rly  American  town, —  While  we  find  in  the 
early  American  county  an  organization  similar  to  that 
of  the  English  county  of  the  seventeenth  and  eigh- 
teenth centuries,  in  the  early  American  town  we  do  not 
find  an  organization  which  resembles  veiy  closely  the 
English  parish  of  the  same  period.  The  town  is,  as 
has  been  said,  an  American  creation  and  its  develop- 
ment has  been  quite  different  in  different  sections.  In 
New  England  it  is  older  than  the  county.*  In  the 
middle  colonies  it  seems  to  be  a  later  creation.^  The 
town  originated  either  in  legislation  ^  or  in  an  execu- 
tive act  of  the  early  colonial  government/  while  in 
some  cases  it  seems  to  have  originated  in  the  settle- 
ment of  lands  bought  for  this  purpose  from  the  In- 
dians by  companies  of  persons  who  then  formed  a  sort 
of  social  compact  for  their  government.^  Towns  formed 
in  this  last  manner  seem  at  first  to  have  had  about  all 
of  the  attributes  of  government,  but  were  later  ab- 
sorbed into  the  colonies  and  lost  in  this  way  all  rights 
but  the  ordinary  rights  of  self -ad  ministration. 


*  We  find  it  in  this  section  as  early  as  1630,  9  Gray,  Mass.,  511. 

^  E.  g.,  Pennsylvania,  supra,  p.  166. 

'  As,  e.  g.,  in  New  England,  Howard,  I,,  56. 

^  E.  g.,  in  New  York  where  the  town  of  Hempstead,  on  Long  Island,  was 
created  by  a  patent  given  by  Director  General  Kieft  in  1644,  Brodhead  op,  dt», 
I.,  388,  and  authorities  cited, 

6  Wood,  History  of  Ijmg  Island,  19  ei  seq. 


I70  LOCAL   ADMINISTRATION. 

From  the  very  beginning  the  principle  of  election 
by  the  voters  of  the  town  seems  to  have  been  the 
method  of  filling  all  the  town  offices ;  and  in  this  prin- 
ciple is  to  be  found  the  great  point  of  difference  be- 
tween American  town  organization  and  the  English 
parish  organization,  and  between  the  positions  of  the 
American  and  English  justices  of  the  peace.  For  in 
the  English  parish  the  justices  of  the  peace  appointed 
ultimately  almost  all  of  the  parish  officers  and  directed 
them  how  to  act.  The  powers  of  the  American  jus- 
tices of  the  peace  over  the  affairs  of  the  towns  were 
much  less  extensive.  In  the  New  England  town  the 
town  officers  were  elected  by  the  town  meeting,  i,  e., 
the  assembly  of  the  political  people  of  the  town.  The 
principal  officers  were  the  selectmen.  They  had  a 
general  supervision  of  town  affairs,  and  were  to  exe- 
cute the  resolutions  of  the  town  meeting  which  was 
the  deliberative  body  in  the  town.^  In  addition  to  the 
selectmen  there  was  also  an  almost  innumerable  list 
of  officers,  each  of  whom  attended  to  some  particular 
matter  affecting  the  welfare  of  the  town.  Some  of 
these  minor  officers  were  elected  at  the  town  meeting, 
some  were  appointed  by  the  selectmen.^  The  existence 
of  such  a  number  of  officers  was  necessaiy  because 
salaries  were  not  paid,  and  because  service  was,  as  a 
rule,  obligatory ;  for  no  man  could  be  expected,  with- 
out compensation,  to  give  up  a  large  share  of  his  time 
to  the  performance  of  public  duties.  In  New  York 
the  principal  officers  of  the  town  after  1691  were  the 
supervisor,  two  assessors,  a  constable,  a  collector,  a 
clerk,  highway  commissioners  or  surveyors,  and  over- 
seers  of  the   poor.     They   were    for  the   most   part 

1  Howard,  I.,  78.  2  j^^^  gS,  96. 


HISTORY  OF  LOCAL  ADMINISTRATION.      171 

elected,  as  in  Massachusetts,  by  the  town  meeting, 
which  in  New  York  had  functions  to  discharge  similar 
to  those  discharged  by  the  Massachusetts  town  meet- 
ing with  the  difference  that  its  sphere  of  action  was 
not  so  extended.  For  the  county  did  a  great  deal  of 
the  work  in  New  York  that  was  attended  to  by  the 
town  in  New  England/  In  Pennsylvania  we  find  in 
the  town  after  its  establishment,  two  overseers  of  the 
poor  appointed  by  the  justices  and  two  supervisors  of 
highways  elected  by  the  people  of  the  town.  As  the 
county  was  much  more  important  in  Pennsylvania 
even  than  in  New  York  there  was  very  little  for  the 
town  to  do.  It  was  more  in  the  nature  of  an  adminis- 
trative division  of  the  county  than  a  local  organization 
with  its  own  duties  to  perform.  Therefore  the  town 
meeting  was  not  present  in  the  original  Pennsylvania 
plan  of  local  administration.^ 

///. — Corporate  capacity  of  the  localities. 


hole 

W 


1.  Original  absence  of  corporate  capacity. — When 
the  elective  principle  was  made  the  rule  for  the  filling 
of  offices  in  the  Iqcal  administrative  system  the  whqlg 
local  organization  became  quite  popular  in  chara 
and  at  the  same  time  quite  independent  of  the 
tral  administration,  since  all  possible  administrative 
sanction  for  instructions  issued  to  the  officers  in  the 
localities  from  the  central  administrative  authoriti^ 
was  destroyed.  But  for  a  considerable  time  after  this 
decentralizing  of  the  administrative  system  the  variWis 
areas  for  the  purposes  of  administration,  in  which  these 
independent  officers  acted,  were,  no  more  than  the  cor- 

*  See  N.  Y.  L.,  June  19,  1703.  JBfc)ward,  I.,  385. 


# 


172  LOCAL   ADMLNLSTRATLON. 

responding  English  areas/  regarded  as  juristic  persons.* 
They  had  no  services  of  their  own  to  attend  to  apart 
from  the  sphere  set  aside  to  them  by  the  statutes  of 
the  central  legislature,  which  regarded  them  as  agents 
of  the  central  administration  of  the  commonwealth, 
nor  could  they  even  hold  property  or  sue  or  be  sued.^ 
One  result  of  the  non-corporate  character  of  towns 
is  to  be  found  in  the  fact  that  by  common  law  the 
property  of  an  ■  inhabitant  of  a  New  England  town 
may  be  taken  upon  execution  on  a  judgment  against 
the  town/  The  first  step  in  New  York  towards  recog- 
nizing that  the  areas  of  administration  possessed  any 
juristic  personality  was  taken  in  the  case  of  North 
Hempstead  v,  Hempstead,^  which  held  that  a  town  had 
a  certain  corporate  capacity  though  what  that  corporate^ 
capacity  was,  was  not  clearly  defined.  The  undoubted 
corporate  capacity  of  the  old  Dutch  towns,  due  to  the 
influence  of  the  Roman  law  and  the  continental  idea 
of  the  territorial  distribution  of  administrative  func- 
tions,^ seems  to  have  influenced  the  court  in  its  decision 
of  this  case  J  In  1801  the  legislature  expressly  made 
the  county  a  capable  grantee  of  lands  ^  and  finally  the 

»  Russell  V.  The  Men  of  Devon,  2  T.  R.,  672,  A.  D.  1788. 

'  Ward  V.  Co.  of  Hartford,  12  Conn.,  406. 

'  See  for  New  York,  which  may  be  taken  as  typical,  the  cases  of  Jackson  v. 
Hartwell,  8  Johnson,  422  ;  Jackson  v.  Cory,  IHd.,  385  ;  Hornbeck  v.  West- 
brook,  9  Johnson,  73  ;  and  Jackson  v.  Schoonmaker,  2  Johnson,  230. 

*  See  Bloomfield  v.  Charter  Oak  Bank,  121  U.  S.,  121,  129  ;  Hill  v.  Boston, 
122  Mass.,  344,  349. 

^  2  Wendell,  N.  Y. ,  109.  In  Massachusetts,  however,  towns  were  authorized 
to  grant  lands  in  1635,  to  sue  and  be  sued  in  1694  ;  and  were  expressly  incor- 
porated in  1785.  See  9  Gray,  Mass.,  511,  note,  which  gives  a  history  of  the 
legislation  as  to  towns. 

*  Supra,  p.  44. 

'  See  Denton  v.  Jackson,  2  Johnson,  Ch.  320,  355. 
«  I  Kent  &  Radcliff's  Laws,  561. 


HISTORY  OF  LOCAL  ADMINISTRATION.      173 

New  York  Revised  Statutes  of  1829  expressly  de- 
clared each  county  and  town  to  be  a  body  corporate 
witli  certain  specified  powers,  to  wit,  the  power  to  hold 
property  and  to  sue  and  be  sued.^  The  principle 
established  in  Massachusetts  and  New  York  has  been 
adopted  in  most  of  the  other  commonwealths  of  the 
United  States  so  that  it  may  be  said  that  the  American 
county  and  town  are,  where  they  have  any  administra- 
tive importance,  at  the  present  time  bodies  corporate 
with  these  specified  powers.^ 

2.  Present  corporate  capacity, — But  while  the  result 
of  American  development  has  been  the  recognition  of 
the  local  areas  as  public  corporations  the  further  step 
has  not  been  taken  of  recognizing  that  such  corpora- 
tions possess  any  sphere  of  local  action  of  their  own. 
The  duties  attended  to  by  them  or  by  the  officers  act- 
ing within  them  are  regarded  as  essentially  matters  of 
central  concern,  and  the  officers,  though  elected  by  the 
people  of  the  localities,  are  not  regarded  as  local  officers 
in  the  sense  that  they  are  agents  of  the  local  corpora- 
tions. They  are  simply  central  officers  who  are,  in 
accordance  with  the  method  adopted  in  the  United 
States  of  filling  these  positions,  elected  by  the  people 
resident  in  the  local  areas.  The  position  of  the  town 
is  well  stated  in  the  case  of  Lorillard  v,  the  Toivn  of 
Monroe^ 

The  several  towns  of  the  state,  says  Judge  Denio,  are  cor- 
porations for  special  and  very  limited  purposes,  or  to  speak  more 

^  The  chapter  devoted  to  the  towns  is  explained  by  the  original  reports  of  the 
revisers  to  the  legislature  in  1827  in  which  it  is  said  that  "  this  article  is  wholly 
new  in  its  present  form." 

'  Cf.  Dillon,  Municipal  Corporations,  4th  edition,  I.,  chapter  ii.  ;  Levy 
Court  v.  Coroner,  2  Wallace,  501,  507. 

3  II  N.  ¥.,  392,  393. 


174  LOCAL   ADMINISTRATION. 

accurately,  they  have  a  certain  limited  corporate  capacity.  They 
may  purchase  and  hold  lands  within  their  own  limits  for  the  use 
of  their  inhabitants.  They  may  as  a  corporation  make  such  con- 
tracts and  hold  such  personal  property  as  may  be  necessary  to 
the  exercise  of  their  corporate  or  administrative  powers,  and  they 
may  regulate  and  manage  their  corporate  property  and  as  a 
necessary  incident  sue  and  be  sued  where  the  assertion  of  their 
corporate  rights  or  the  enforcement  of  their  corporate  liabilities 
shall  require  such  proceedings.  In  all  other  respects,  for  in- 
stance in  everything  which  concerns  the  administration  of  civil 
or  criminal  justice,  the  preservation  of  the  public  health  or  morals, 
the  conservation  of  highways,  roads,  and  bridges,  the  relief  of  the 
poor,  and  the  assessment  and  collection  of  taxes,  the  several 
towns  are  political  divisions,  organized  for  the  convenient  exer- 
cise of  portions  of  the  political  power  of  the  state  ;  and  are  no 
more  corporations  than  the  judicial  or  assembly  districts.  The 
functions  and  the  duties  of  the  several  town  officers  respecting 
these  subjects  are  not  in  any  sense  corporate  functions  or  duties. 

The  judge  goes  on  to  say  it  is  convenient  to  have 
the  officers  chosen  in  the  towns,  but  they  are,  when 
chosen,  public  and  not  corporate  officers  just  as  much 
as  the  highest  official  functionaries  of  the  state ;  they 
are  not  therefore  in  any  legal  sense  the  servants  or 
agents  of  the  towns.^  The  position  of  the  county,  which 
is  quite  similar  to  that  of  the  town  is  well  stated  in  the 
case  of  Hamilton  Go,  v,  Mighels.^  The  court  says 
here: 

A  county  is  at  most  but  a  local  organization  which  for  pur- 
poses of  civil  administration  is  invested  with  a  few  functions  charac- 
teristic of  a  corporate  existence.  ...  A  county  organization 
is  created  almost  exclusively  with  a  view  to  the  policy  of  the  state 
at  large,  for  purposes  of  political  organization  and  civil  adminis- 
tration, in  matters  of  finance,  of  education,  of  provision  for  the 

'  See  also  Town  of  Gallatin  v.  Loucks,  21  Barbour,  N.  Y.,  578  ;  City  of 
Rochester  v.  Town  of  Rush,  80  N.  Y.,  302  ;  Sikes  v.  Hatfield,  13  Gray,  Mass., 
347  ;  and  particularly  Hill  v.  Boston,  122  Mass.,  344. 

*  7  Ohio  St.,  109,  115. 


HISTORY  OF  LOCAL  ADMINISTRATION,      175 

poor,  of  military  organization,  of  the  means  of  travel  and  trans- 
port, and  especially  for  the  general  administration  of  justice. 
With  scarcely  an  exception  all  the  powers  and  functions  of  the 
county  organization  have  a  direct  and  exclusive  reference  to  the 
general  policy  of  the  state,  and  are  in  fact  but  a  branch  of  the 
general  administration  of  that  policy. 

Again  in  Talbot  Go,  v.  Queen  Anne's  Co,,^  the  court 
says: 

A  county  is  one  of  the  public  territorial  divisions  of  the  state 
created  and  organized  for  public  political  purposes  connected 
with  the  administration  of  the  state  government,  and  especially 
charged  with  the  superintendence  and  administration  of  the  local 
affairs  of  the  community." 

It  will  be  seen  what  a  slight  recognition  there  has 
been,  notwithstanding  the  corporate  capacity  of  the 
local  areas,  of  the  possession  by  them  of  any  sphere  of 
action  of  their  own  as  distinguished  from  their  sphere 
of  action  as  the  mere  agents  of  the  commonwealth 
government.  Their  corporate  capacity  is  made  a  mere 
incident  to  their  public  governmental  capacity  and  is 
of  value  to  them  only  in  that  through  it  it  is  possible 
for  them  to  own  lands  and  property.  But  even  this 
property  is  subject  to  the  regulation  of  the  legislature, 
which  may  take  it  away  from  them  and  provide  at  any 
time  that  it  may  be  made  use  of  for  some  purpose 
other  than  that  for  which  it  was  purchased.^  Outside 
of  this  problematical  advantage  of  holding  property 
which  is  really  more  the  property  of  the  commonwealth 
than  of  the  local  areas,  their  corporate  capacity  is  as 
much  a  disadvantage  as  an  advantage  to  them,  since 

^  50  Md.,  245,  259. 

*  See  also  Scales,  v.  The  Ordinary,  41  Ga.,  225,  227,  229  ;  cf.  Dillon,  Municipal 
Corporations^  4th  edition,  I,,  chap.  ii. 
^  See  infra,  p.  202. 


176  LOCAL  ADMINISTRATION. 

while  they  are  able  through  it  to  bring  suits  they  are 
also  liable  to  be  sued.  This  corporate  capacity  has  in- 
deed been  so  narrowly  construed  by  the  courts  that  it 
gives  the  localities  no  other  powers  than  those  already 
mentioned  of  owning  property,  of  suing,  and  of  being 
sued.  The  courts  have  held  that  as  a  result  of  it  they 
have  no  borrowing  power  ^  and  practically  that  from  it 
there  can  be  derived  no  principle  of  respoTideat  superior 
for  the  acts  of  the  officers  of  these  local  areas.  The 
last  point  was  distinctly  held  in  the  cases  of  Loril- 
lard  V,  the  Town  of  Monroe  and  Sikes  v,  Hatfield,  to 
which  reference  has  been  made.  It  is  true,  however, 
that  either  general  or  special  statutes  have  conferred 
upon  the  local  areas  the  power  to  borrow  money  for  a 
series  of  specified  purposes,  the  most  common  of  which 
are  to  erect  county  or  town  buildings,  which  serve  at 
the  same  time  as  the  offices  of  the  administrative  ser- 
vices of  the  commonwealth  attended  to  in  the  county 
or  town ;  and  to  aid  means  of  transportation,  such  as 
railroads  which  are  being  constructed  and  operated  by 
private  companies.  But  no  general  sphere  of  action  in 
which  the  localities  have  any  independent  powers  has 
been  derived  from  the  corporate  capacity  which  they 
possess. 

Thus,  notwithstanding  the  great  decentralization  of 
the  administrative  system  which  has  resulted  from  the 
development  of  American  local  institutions,  and  not- 
withstanding the  recognition  of  the  juristic  personality 
of  the  local  areas,  it  cannot  be  said  that  the  course  of 
American  local  administrative  history  has  given  to  the 
localities  any  sphere  of  independent  local  action.  They 
are,  as  their  English  prototypes  were  after  the  Norman 

^  Starin  v.  Town  of  Genoa,  23  N.  Y.,  441,  447. 


HISTORY  OF  LOCAL  ADMINISTRATION.      177 

conquest,  simply  agents  of  the  central  administration 
with,  however,  a  corporate  capacity  which  is  to  be 
made  use  of  more  for  the  benefit  of  the  common- 
wealth as  a  whole  than  for  the  benefit  of  the  particular 
areas  themselves. 


CHAPTER  TL 

EUEAL   LOCAL   ADMINISTRATION     IN    THE   UNITED     STATES 
AT   THE   PRESENT   TIME. 

/. —  The  compromise  system. 

1.  The  county. — The  three  general  types  of  the 
English  local  administrative  system  which  were  formed 
in  America  at  the  time  of  its  settlement  or  which  were 
developed  soon  after  its  settlement  are  still  to  be  found. 
That  developed  in  New  York  and  Pennsylvania,  which 
provided  at  a  very  early  period  for  popular  representa- 
tion in  the  county  authority  and  which  distributed 
administrative  affairs  somewhat  equally  among  the  two 
important  areas,  has  had  the  greatest  influence,  is  at 
the  present  time  the  most  widely  adopted,  and  seems 
destined  to  become  the  prevailing  type  of  local  admin- 
istration in  the  United  States.  One  of  the  principles 
on  which  it  was  based  has  been  all  but  universally 
adopted,  i.  e.y  the  election  of  the  county  authority  by 
the  people  of  the  county,  who  are  now  defined  in  ac- 
cordance with  the  principles  of  universal  manhood 
suffrage.  This  principle  has  in  most  cases  been  ex- 
tended, in  accordance  with  the  Pennsylvania  idea,  to 
other  officers  besides  the  county  authority  proper,  so 
that  now  the  usual  rule  is  that  all  important  officers  in 
the  county  are  elected  by  the  people  of  the  county. 

178 


RURAL  LOCAL  ADMINISTRATION.  179 

For  example,  the  sheriff,  the  county  clerk,  the  county 
treasurer,  the  register  or  recorder  of  deeds,  the  district 
attorney,  and  the  county  superintendent  of  the  poor, 
where  that  officer  is  to  be  found,  are  generally  elected 
by  the  people,  and  not  appointed  by  the  central  ad- 
ministration of  the  commonwealth  or  by  the  county 
authority,  as  was  the  case  in  the  original  English  and 
American  system.  In  many  cases  their  election  by  the 
people  is  prescribed  by  the  constitution  of  the  com- 
monwealth.^ 

This  system  of  local  administration,  in  accordance 
with  which  administrative  duties  are  about  equally 
distributed  among  the  counties  and  the  towns,  is  called 
the  compromise  system,  inasmuch  as  it  adopts  the  ex- 
tremes of  neither  the  New  England  nor  the  southern 
system.  It  is  found  in  the  middle  commonwealths, 
and  in  those  of  the  west  and  northwest.  It  has  even 
invaded  the  domain  of  the  southern  system  in  that  it 
has  been  partially  adopted  in  Virginia,  and  the  domain 
of  the  New  England  system  in  that  it  has  been  par- 
tially adopted  in  Massachusetts  and  Maine.  The  com- 
promise system  itself,  however,  presents  two  quite 
distinct  varieties,  to  wit,  that  of  New  York  by  which 
representation  on  the  county  authority  is  given  to  each 
of  the  towns  of  which  the  county  is  composed;  and' 
that  of  Pennsylvania  in  which  the  county  authority 
consists  of  three  commissioners  elected  by  the  people 
of  the  county  as  a  whole.  The  first  is  called  the  New 
York  or  supervisor  plan,  the  second  is  called  the  Penn- 
sylvania or  commissioner  plan.  The  supervisor  plan 
has  the  advantage  of  lessening  the  danger  of  local  dis- 
crimination by  the  county  authority,  since  each  locality 

'  See  Stimson,  op.  cit..  p.  47,  sec.  210  B. 


180  LOCAL  ADMLNLSTRATION, 

is  represented  on  the  county  authority ;  the  second  or 
commissioner  plan  is  to  be  preferred  as  ensuring  a 
more  energetic  and  efficient  administration  since  there 
are  not  so  many  minds  to  be  made  up  in  the  county 
authority.  The  supervisor  form  of  the  compromise 
system  is  to  be  found  in  New  York,  Michigan,  Illinois, 
Wisconsin,  Nebraska,  and,  to  a  certain  extent,  in  Vir- 
ginia * ;  the  commissioner  form  of  the  compromise 
system  is  to  be  found  in  Pennsylvania,  Ohio,  Indiana, 
Iowa,  Kansas,  and  Missouri,  and,  to  a  certain  extent,  in 
Maine,  Massachusetts,  Minnesota,  and  the  Dakotas,  and 
has  very  generally  been  adopted  as  the  form  for  the 
county  authority  in  the  commonwealths  of  the  south, 
where  there  are  in  the  county  generally  no  lesser  dis- 
tricts to  be  represented."^  In  the  compromise  system 
the  county  authority  is  then  either  a  board  of  super- 
visors, one  of  whom  is  elected  by  the  people  of  each 
town  within  the  county ;  or  it  consists  of  three  com- 
missioners elected  sometimes  by  the  people  of  the 
county  as  a  whole,  sometimes  it  being  necessary  that 
each  of  the  three  commissioners  shall  be  elected  by 
one  of  three  election  districts  into  which  the 
county  is  for  this  purpose  divided.  This  authority  has 
the  general  management  of  the  administrative  affairs 
attended  to  within  the  limits  of  the  county.  In  case 
the  commissioner  system  has  been  adopted  somewhat 
wider  powers  appear  as  a  rule  to  be  granted  to  the 
county  authority.^  The  powers  are,  however,  essen- 
tially the  same  whatever  be  the  method  of  constituting 
the  authority.  They  relate  to  the  bridges  and  roads, 
the  support  of  the  poor  and  the  care  of  the  finances* ; 

'  Howard,  I.,  439,  453,  465.  '  Howard,  I.,  442. 

«  Ibid,,  I.,  439.  ^  Cf.  Howard,  I.,  446. 


RURAL  LOCAL  ADMINISTRATION.  i8i 

and  in  many  cases  include  powers  which  only  very 
indirectly  affect  the  affairs  of  the  county,  but  are  of 
most  interest  to  the  commonwealth  as  a  whole.  Thus 
the  county  authority  has  often  to  publish  the  laws  and 
election  notices  for  commonwealth  elections,  acts  often 
as  the  county  board  of  election  canvassers,  draws  up  in 
some  cases  the  lists  of  grand  jurors,  and  discharges 
duties  mainly  of  a  financial  character  in  relation  to  the 
commonwealth  military  forces/  But  the  characteristic 
and  most  important  powers  of  the  county  authority 
are  those  relating  to  the  county  finances.  For  the 
expenses  of  many  matters  affecting  the  commonwealth 
as  a  whole  and  not  the  county,  are  devolved  by  law 
upon  the  county.  Such,  for  example,  are  many  ex- 
penses connected  with  the  administration  of  justice 
which,  though  the  courts  are  recognized  now  as  com- 
monwealth rather  than  local  agencies,  are  generally 
borne  by  the  counties.  This  is  in  accordance  with  the 
old  English  idea  of  devolving  the  expense  of  almost 
every  administrative  service  upon  the  counties  or  the 
parishes.  We  do,  however,  find  certain  differences  in 
the  different  commonwealths  in  the  powers  of  the 
county  authority  relative  to  the  officers  acting  within 
the  county.  While  the  usual  rule  would  appear  to  be 
that  the  county  authority  may  not  be  regarded  as  re- 
sponsible for  the  actions  of  the  other  officers  in  the 
county  who  are  elected  by  the  people  of  the  county, 
and  in  some  instances,  as  in  New  York,  may  be  re- 
moved only  by  the  governor  and  then  only  for  miscon- 
duct in  office  ^ ;  in  one  commonwealth  at  least  the 
administration  of  affairs  in  the  county  is  a  good  deal 

*  See  Morehouse's  Supervisors'  Manual,  115,  347,  352,  355,  363. 
'  Supra,  p.  79. 


1 82  LOCAL  ADMINISTRATION. 

concentrated  in  tlie  county  authority  which  has  quite  a 
disciplinary  power  over  the  other  officers  in  the  county. 
This  is  Nebraska,  where  the  county  authority  may  hear 
complaints  against  any  county  officer  and  may  remove 
him  for  official  misdemeanors  which  are  defined  in  the 
statutes  and  are,  as  in  New  York,  simply  misconduct  in 
office.  It  may  remove  for  this  cause  a  county  officer 
whether  he  has  been  elected  by  the  people  or  ap- 
pointed by  the  county  authority.^  If  the  county 
board  refuses  to  move  upon  a  complaint  made  to  it  on 
the  behavior  of  a  county  officer  it  may  be  forced  to 
take  action  by  the  courts.^  Again  there  is  a  difference 
in  the  relations  of  the  county  authority  to  the  lesser 
areas  of  administration,  viz.^  the  towns.  While  the 
usual  rule  would  seem  to  be  that  the  county  authority 
has  no  control  over  the  administration  of  the  towns,  in 
some  of  the  commonwealths  which  have  adopted  the 
New  York  form  of  administration  the  county  author- 
ity has  considerable  supervisory  power  over  the 
administration  of  the  towns.  Thus  in  this  form  the 
towns  do  not  possess  the  taxing  power,  but  all 
the  town  taxes  are  to  be  voted  by  the  county 
authority.^  Up  to  1892  the  board  of  supervisors 
had  in  New  York  another  power,  which  gave  it 
considerable  control  over  the  town  administration. 
This  was  the  power  to  refuse  its  approval  of  the  in- 
curring of  certain  expenses  by  the  town,  without  which 
approval,  such  expense  would  not  be  a  valid  charge 
upon  the  town ;  or  to  direct  how  town  business  shall 


*  Compiled  Statutes  of  Nebraska,  1889,  p.  369  ;  cf.  Howard,  I.,  445. 
'  The  State  v.  Saline  Co.,  18  Neb.,  428. 

^  E.  g..  New  York  L.  1892.  c.  686,  sec.  12  ;  L.  1892,  c.  569  ;  L.  1890,  c, 
568,  sec.  139. 


RURAL  LOCAL  ADMINISTRATION,  183 

be  transacted.^  This  power  seems  to  have  been  taken 
away  by  the  laws  of  1892.^ 

2.  The  town, — The  town  organization  in  the  com- 
promise system  varies  considerably  more  in  the  differ- 
ent commonwealths  than  that  of  the  county.  In  the 
New  York  form  there  is  in  the  first  place  a  town  meet- 
ing,^ which  is  to  decide  most  matters  affecting  the  in- 
terests of  the  town,  always  in  accordance  with  the 
statutes  giving  the  town  power  and,  where  the  county 
authority  has  power  of  supervision  over  the  actions  of 
the  town,  subject  to  the  approval  of  the  county  au- 
thority. This  town  meeting  does  not  however  exist  in 
the  pure  Pennsylvania  form,'^  but  does  in  a  very  rudi- 
mentary form  in  Minnesota  and  the  Dakotas  where  it 
may  enact  by-laws  and  elect  officers.^  In  the  pure 
Pennsylvania  plan  the  functions  of  the  town  are  dis- 
charged by  a  corps  of  officers  elected  by  the  people  of 
the  town.^ 

In  the  second  place  the  principal  town  officers  differ 
considerably.  In  some  of  the  commonwealths,  mostly 
those  which  have  followed  the  New  York  form,  an 
officer  called  by  different  names,  but  similar  to  the 
supervisor  is  elected  by  the  town.  He  is  the  general 
executive  of  the  town  as  a  local  corporation,  has  charge 
of  its  property,  represents  it  over  against  third  persons, 
and  has  a  series  of  duties  to  perform  in  various  admin- 
istrative branches,  such  as  public  education  and  public 
charity.'  In  some  cases,  however,  such  officer  is  not  a 
member  of  the  county  board  as  in  the  pure  New  York 

'  Cf.  Morehouse,  op.  cit.,  303,  344,  citing  L.  1869,  c.  855  ;  L.  1886,  c.  355. 

«  N.  Y.  L.  1892,  c.  686.     Schedule  of  laws  repealed. 

»  See  N.  Y.  L.,  1892,  c.  569,  Article  II. 

*  Howard,  I.,  157.  «  Ibid.,  157. 

'  Ibid.,  158.  '  For  New  York  see  L.  1892,  c.  569,  sec.  80. 


i84  LOCAL  ADMLNLSTRATION. 

plan.  This  is  the  case  with  the  town  trustee  who  is 
elected  by  the  people  of  the  town  in  Indiana,  Missouri, 
and  Kansas,  and  with  the  town  chairman  who  is  elected 
in  a  similar  way  in  Wisconsin.^  Generally  the  actions 
of  such  officer  are  controlled  by  a  town  board  which 
in  other  cases  is  the  only  real  authority.^  In  some 
cases  the  supervisor  or  similar  officer  performs  other 
duties,  such  as  those  of  the  assessor,^  or  those  of  the 
overseer  of  the  poor.*  In  Michigan  he  is  also  census 
enumerator  and  registrar  of  births  and  deaths.^  The 
town  board  to  which  reference  has  been  made  is  vari- 
ously formed,  but  generally  of  the  supervisor  or  similar 
officer  and  other  minor  town  officers  such  as  the  town 
clerk,  and  the  justices  of  the  peace  who  thus  still  retain 
certain  administrative  functions,  or  the  assessors.^  Be- 
sides controlling  the  action  of  the  supervisor  or  similar 
officer,  or  itself  conducting  the  affairs  of  the  town,  the 
town  board  has  to  audit  all  claims  against  the  town 
and  the  accounts  of  town  officers.^  In  New  York  of 
late  years  the  attempt  has  been  made  to  form  a  sepa- 
rate board  of  town  audit  though  the  old  method  is  still 
followed  in  a  good  many  of  the  towns.^  In  some  cases 
this  town  board  may  levy  taxes  as  in  Michigan  and 
Ohio.9    There  are  quite  a  number  of  other  town  officers 

*  Howard,  I.,  i68,  and  authorities  cited. 

'  The  town  board  is  the  real  authority  in  Ohio,  Pennsylvania,  Iowa,  Minne- 
sota, and  the  Dakotas.     Ibid.,  168-169. 

*  As  in  Michigan,  Ibid.,  170. 

*  As  in  Nebraska  and  Michigan,  Ibid.^  170 ;  Cocker,  Civil  Government  in 
Michigan^  26. 

^  Cocker,  op.  cit.,  26. 

*  Howard,  I.,  172. 
"^  Ibid.,  172. 

^  See  New  York  Laws  of  1840,  c.  305  ;  i860,  c.  58  ;  1863,  c.  172  ;  1866,  c 
832  ;  1875,  c.  180,  now  incorporated  in  L.  1892,  c.  569,  sees.  172  et  seq. 
'  Howard,  I.,  173. 


RURAL  LOCAL  ADMINISTRATION.  185 

who  attend  each  to  some  special  brancli  of  administra- 
tion, such  as  the  town  clerk,  collector,  assessor,  over- 
seer of  the  poor,  highway  commissioners,  and  overseers 
and  constables,  but  these  are  for  the  most  part  officers 
of  the  central  administration  acting  within  the  limits 
of  the  town,  and  cannot  be  regarded  as  agents  of  the 
town  corporation,  though  they  are  generally  elected  by 
the  people  of  the  town.^  It  should  be  noted  that  in 
the  compromise  system  the  town  is  not  usually  en- 
trusted with  the  care  of  the  schools,  which  are  attended 
to  by  separately  organized  school  districts.^  Finally,  in 
the  compromise  system  the  officers  in  the  town  are 
usually  elected  by  the  people  of  the  town ;  if  there  is 
a  town  meeting,  then  in  the  town  meeting  as  in  New 
York,^  if  not,  then  at  a  ^town  election,  as  in  Pennsyl- 
vania.* ^ 

//. —  The  New  England  system. 

1.  The  county, — The  characteristic  of  the  New  Eng- 
land system  of  local  administration  is  that  the  county 
is  almost  ignored.  Almost  all  important  local  adminis- 
trative functions  are  centred  in  the  town,  even  where  the 
existence  of  the  county  as  a  district  for  certain  purposes 
of  administration  is  recognized.  In  Rhode  Island  the 
county  is  to  be  found,  but  only  in  an  extremely  rudi- 
mentary form.  Here  the  county  is  simply  a  district 
for  the  purposes  of  judicial  administration,  but  seems  to 
have  no  juristic  personality.  Officers  in  the  county, 
like  the  sheriff  and  the  clerks  of  certain  courts,  are 
elected  by  the  general  assembly  of  the  commonwealth.^ 
In  Vermont  also,  all  real  local  power  is  centred  in  the 

*  Cf,  Lorillard  v.  Town  of  Monroe,  11  N.  Y.,  392. 

'  Howard,  I.,  235;  Cocker,  op.  cit.,  92.  *  Supra,  p.  171. 

*  See  statutes  cited  above.  *  Public  Statutes,  39  and  74. 


i86  LOCAL  ADMINISTRATION. 

town  ;  the  only  administrative  business  which  is  given 
to  officers  in  the  county  consisting  first,  of  the  powers 
possessed  by  the  sheriff  as  conservator  of  the  peace  and 
as  ministerial  officer  of  the  courts  and  of  the  powers 
given  to  an  elected  county  commissioner  to  supervise 
the  execution  of  the  laws  prohibiting  the  sale  of  liquors, 
which  are  really  enforced  by  the  town  agents  * ;  second, 
of  the  powers  given  to  the  assistant  judges  of  the  county 
courts  to  control  the  financial  administration  of  the 
county,  appoint  the  county  treasurer,  and  hear  appeals 
in  highway  matters  ^ ;  and  third,  of  the  powers  given 
to  a  county  equalizing  convention,  composed  of  dele- 
gates appointed  by  the  town  listers  or  assessors  from 
among  their  own  number,  to  make  quadrennially  an 
equalization  of  the  assessments  of  the  various  towns  for 
the  purposes  of  taxation.^  In  Vermont  there  is  no 
county  administrative  authority  like  the  board  of  super- 
visors or  the  county  commissioners  in  the  compromise 
system,  but  all  matters  affecting  the  county,  not  at- 
tended to  by  the  special  officers  mentioned,  especially 
those  affecting  the  financial  administration  of  the 
county,  are  attended  to  by  the  assistant  judges  of  the 
county  court. 

In  Connecticut  the  general  assembly  of  the  com- 
monwealth appoints  periodically  three  commissioners  in 
each  county,  who  have  the  care  of  the  county  property 
and  the  oversight  of  the  county  jail,  supervise  the  county 
workhouses  and  levy  taxes  within  certain  limits  for  the 
repair  of  the  court  house  and  the  jail.  The  fiscal 
administration  of  the  county,  so  far  as  there  is  any,  is 
attended  to  by  a  joint  assembly  of  the  senators  and 
representatives  for  the  county  in  the  commonwealth 

*  Revised  Laws,  732,  733.  '  Ibid,,  517,  573.  '  Ibid,,  124,  125. 


RURAL  LOCAL  ADMINISTRATION.  187 

legislature,  who  are  to  meet  biennially  at  tlie  capital 
of  the  commonwealth,  make  appropriations  for  county- 
expenditure,  estimate  and  apportion  the  county  taxes, 
and  examine  the  accounts  of  the  county  officers.  The 
county  treasurer  is  appointed  by  the  commissioners, 
the  coroner  by  the  supreme  court,  but  the  sheriffs  are 
elected  by  the  people  of  the  county/  y 

In  New  Hampshire  there  are  three  commissioners 
elected  by  the  people  of  the  county,  who  have,  how- 
ever, little  independent  power,  and  are  subject  to  the 
control  of  a  county  convention  composed  of  the  repre- 
sentatives to  the  legislature  of  the  towns  of  the  county. 
This  convention  meets  biennially,  when  it  may  levy 
taxes,  may  authorize  the  commissioners  to  issue  bonds 
and  to  repair  the  county  buildings,  such  authorization 
being  necessary  whenever  the  amount  of  the  repairs 
exceeds  $1,000.  The  commissioners  are  to  attend  to 
the  care  of  the  county  paupers  and  county  property, 
and  may  lay  out  highways  and  establish  houses  of  cor- 
rection ;  and,  when  authorized  so  to  do,  purchase  and 
convey  real  estate.  Besides  the  commissioners,  the 
people  of  the  county  elect  every  two  years  a  sheriff, 
treasurer,  solicitor,  a  registrar  of  deeds,  and  a  registrar 
of  probate.^ 

It  will  be  seen  from  this  slight  sketch  of  the  county 
organization  in  the  New  England  commonwealths  that 
the  New  England  county  is  in  the  process  of  becoming 
of  some  importance  in  administrative  matters.  It  has 
already  in  several  instances  become  a  body  corporate, 
but  as  yet  it  has  not  succeeded  in  obtaining  a  county 

^  General  Statutes  1888,  429-32,  434,  740,  748. 

'  General  Laws  1878,  80-94.     On  the  general  subject  of  the  county  adminis- 
tration in  New  England  see  Howard,  op.  cit.,  I.,  459,  464. 


i88  LOCAL  ADMINISTRATION. 

authority  of  any  great  independence,  which  is  separated 
from  the  other  departments  of  the  commonwealth  gov- 
ernment. Thus  in  Connecticut  and  New  Hampshire, 
it  is  under  the  control  of  the  representatives  of  the 
towns  in  the  county  to  the  legislature,  while  in  Ver- 
mont the  most  important  administrative  functions  in 
the  county  are  discharged  by  the  assistant  judges  of 
the  ordinary  county  court.  In  so  far  as  a  county 
authority  has  been  developed,  as  e,  g.  the  commissioners, 
who  are  found  in  Connecticut  and  New  Hampshire, 
and  it  may  be  added  in  Massachusetts,  where  they  have 
larger  powers  than  in  any  other  of  the  New  England 
commonwealths,  the  Pennsylvania  rather  than  the  New 
York  form  is  the  model  that  is  being  copied.  The  rule 
as  to  the  filling  of  the  other  offices  in  the  county  is  not 
at  all  uniform,  in  some  cases  the  people  of  the  county 
electing  such  officers,  in  others  some  other  authority 
having  the  right  to  appoint  them. 

2.  The  New  England  town.—^\i^i  the  New  Eng- 
land county  loses  in  importance  the  town  gains.  In 
the  New  England  towns  are  centred  most  of  the  ad- 
ministrative functions  discharged  in  the  localities.  In 
all  the  towns  we  find  the  town  meeting  similar  to  the 
New  York  town  meeting,  but  generally  possessed  of 
greater  powers.  Thus  the  town  meeting  may  not  only 
pass  by-laws  but  may  also  levy  taxes,  makes  all  neces- 
sary appropriations  and  decides  all  town  matters,  such 
as  the  making  of  contracts^;  and  its  action  is  not  sub- 
ject to  the  control  of  any  county  authority.  The  town 
officers  are,  however,  differently  organized  in  New 
England.      The  chief  officers  are  still  the  selectmen.^ 

^  See  Bloomfield  v.  Charter  Oak  Bank,  121  U.  S.,  121  ;  cf,  for  duties  and 
powers  of  towns,  Dillon,  op.  cit.,  I.,  47,  note. 
*  Howard,  oJ>.  cii.,  I.,  227. 


RURAL  LOCAL  ADMINISTRATION.  189 

In  Rhode  Island,  however,  the  town  authority  is  to  be 
found  in  a  council  of  from  three  to  seven  members 
elected  by  the  town  meeting.'  -^  This  body  resembles 
somewhat  the  town  board,  which  is  to  be  found  in 
some  of  the  western  commonwealths,  and  by  which,  it 
will  be  remembered,  most  of  the  business  of  the  town  is 
to  be  discharged.  Often  in  New  England  the  select- 
men, who,  like  the  town  council  of  Rhode  Island,  are 
elected  by  the  town  meeting,  have  the  right  to  appoint 
some  of  the  other  town  officers,  though  the  rule  would 
seem  to  be  that  they  also  are  elected  by  the  town 
meeting.  Everywhere  the  selectmen  have  the  right  to 
fill  vacancies  in  town  offices.  The  selectmen  also  dis- 
charge many  functions  which,  in  the  New  York  form, 
are  attended  to  by  separate  officers.  Thus  in  Massa- 
chusetts the  selectmen  act  as  overseers  of  the  poor 
while  the  constable  very  generally  acts  as  collector  of 
taxes.^  In  New  England  generally  the  town  is  the 
school  district,  though  there  are  separate  officers  to 
attend  to  the  school  administration.^ 

///. —  The  southern  system. 

The  third  type  of  local  administration  in  the  United 
States  is  to  be  found  in  the  southern  commonwealths. 
The  main  characteristics  of  this  system  is  that  nearly 
all  administrative  business,  not  absolutely  municipal 
in  character  for  which  the  municipal  corporation  has 
been  formed,  and  not  affecting  education,  for  which 
the  school  district  has  been  formed,*  is  centred  in  the 

*  Ihid.  ;  see  also  Public  Statutes  1882,  pp.  109-119. 

*  Howard,  I.,  227. 
^  Ibid.,  235. 

*  As,  e.  g.,  in  Virginia,  Kentucky,  Texas,  and  Tennessee.     Howard,  op,  cit,^ 
I.,  237. 


I90  LOCAL  ADMINLSTRATION. 

county  and  its  officers.  In  some  of  the  common- 
wealths, however,  even  school  matters  are  attended  to 
by  county  officers/  In  Alabama  the  district  for  the 
purpose  of  school  administration  is  called  the  town- 
ship.'^ It  is  believed  that  the  introduction  of  the 
school  district  is  causing  a  disintegration  of  the  county 
and  the  establishment  of  a  smaller  local  area.^ 

The  county  authority  in  the  south  presents  quite  a 
variety  in  the  forms  of  its  organization.  But  it  may 
safely  be  said  that  the  tendency  has  been  to  adopt  the 
principle  of  popular  election  for  not  only  the  county 
authority  but  for  most  of  the  officers  in  the  county.* 
North  Carolina  and  Tennessee  seem  to  be  the  farthest 
behind  in  this  respect.  Here  the  justices  of  the  peace 
appointed  by  the  general  assembly  of  the  common- 
wealth have  large  administrative  powers,  and  the 
sheriff,  who  is,  it  is  true,  elected  by  the  people  of  the 
county,  has  still  very  many  of  the  fiscal  powers  of  the 
old  Norman  sheriff.  Thus  he  is  still  the  collector  of 
taxes  and  may  be  the  treasurer  of  the  county.^  It 
may  be  further  said  of  the  southern  system  that  the 
Pennsylvania  or  commissioner  form  is  the  one  gener- 
ally adopted.^  That  is,  the  county  authority  usually 
consists  of  three  commissioners  elected  by  the  people 
of  the  county.  There  are,  however,  exceptions  to  this 
rule.  Thus  the  New  York  form  of  the  county  au- 
thority has  been  adopted  in  Virginia.  There  we  find 
a  board   of    supervisors,  each   member  of  which   is 

^  E.  g..  South  and  North  Carolina  and  Georgia,  Ibid. 

'  Ibid.,  citing  Code  of  Alabama,  1886,  I.,  221,  222. 

'  Howard,  I.,  237. 

*Ibid.,^t^. 

^Ibid.,  469,  470,  citing  Code  of  North  Carolina,  1883,  pp.  287,  312. 

«  Howard.  I.,  468. 


RURAL  LOCAL  ADMINISTRATION.  191 

elected  in  one  of  the  magisterial  districts  into  whicli 
the  county  is  divided.  The  attempt  of  northern  men 
under  the  leadership  of  a  New  York  man  to  introduce 
the  New  York  town  failed.  The  magisterial  district 
established  in  1874  has  taken  the  place  of  the  town 
which  existed  only  for  a  few  years.  In  this  district  a 
supervisor,  constable,  and  overseer  of  the  poor  are 
elected  by  the  people.  There  is,  however,  nothing 
like  the  town  meeting.^  Further  the  board  of  super- 
visors is  not  as  independent  as  in  New  York,  appeals 
going  in  many  cases  from  its  decisions  to  the  county 
court,  not  only  in  points  of  law,  but  also  on  points  of 
fact  and  questions  of  expediency.  Powers  in  highway 
matters  also  are  about  equally  divided  between  the 
board  of  supervisors  and  the  county  court.  Assess- 
ments for  the  purposes  of  taxation  are  made  by  an- 
other popular  authority,  viz,^  the  commissioners  of 
revenue,  elected  by  popular  vote.^  The  matter  of  edu- 
cation is  under  the  control  of  the  central  government 
of  the  commonwealth,  and  quite  a  number  of  officers 
in  the  local  administrative  system  are  appointed  either 
by  the  central  government  of  the  commonwealth  or 
by  the  county  court.  This  latter  body  has  quite  a 
wide  range  of  administrative  powers,  among  which  are 
the  powers  to  revise  assessments,  to  determine  election 
contests,  etc.^  etc.,  and  finally  the  most  extraordinary 
power  of  removing  county  officers.^  Another  excep- 
tion to  the  rule  that  the  county  authority  in  the  south 
is  a  board  of  three  commissioners  is  to  be  found  in 
Georgia,  where  the  ordinary,  an  officer  who  corre- 
sponds to  the  surrogate  of  the  middle  states,  or  the 

*  IHd.,  231.  *  Ibid.,  465-7,  citing  Code  of  Virginia,  1887. 

"Howard,  I.,  466,  467. 


192  LOCAL  ADMINISTRATION. 

probate  judge  of  New  England,  and  who  is  elected  by 
the  people  of  the  county,  is  the  most  important  county 
officer.  In  important  matters  he  must  act  with  the 
grand  jury.  The  justices  of  the  peace  in  Georgia  also 
still  have  important  duties  to  perform.^ 

In  some  of  the  southern  commonwealths  there  is  an 
area  lower  than  the  county  which  is  sometimes  called 
the  town.^  But  it  is  not  generally  a  corporation  but 
simply  an  administrative  district  of  the  county,  in 
which  there  is  no  town  meeting.  In  it  are  elected  by 
the  people  certain  officers  like  commissioners  of  high- 
ways and  constables,  though  generally  such  officers 
are  appointed  for  such  district  by  the  county  authority. 

'  Const.,  art.  v.,  sec.  5,  p.  2  ;  Code,  1882,  part  I.,  title  vi.,  chap.  ii.  ;  title 
v.,  chap.  viii. 
*  See  supra^  p.  190,  in  relation  to  Alabama. 


CHAPTER  III. 

MITNIOIPAL    ORGANIZATION    IN   THE   UNITED    STATES. 

/. — History  of  the  English  municipality  to  the  seventeenth  and 
eighteenth  centuries? 

1.  Origin  of  the  borough, — According  to  the  English 
method  of  permitting  the  localities  to  participate  in  the 
work  of  administration  the  more  thickly  populated  dis- 
tricts have  always  had  a  somewhat  peculiar  organiza- 
tion. The  origin  of  this  peculiar  organization  is  to  be 
found  in  the  grant  to  districts  with  a  greater  than 
average  population  of  a  series  of  privileges  for  the  ex- 
ercise of  which  there  was  gradually  formed  a  series  of 
authorities  differing  in  many  respects  from  the  authori- 
ties in  the  rural  districts.  These  privileges  were 
known  as  the  firma  hv/rgi  and  the  court  leet. 

The  f/rma  burgi  was  the  lease  of  the  town  by  the 
Crown  to  the  inhabitants.  From  the  very  beginning 
of  the  Norman  period  the  inhabitants  of  the  towns,  as 
well  as  of  the  rural  districts,  owed  certain  payments  or 
services  to  the  Crown.  As  a  rule  these  payments  were 
to  be  collected  by  the  sheriff,  as  the  fiscal  representative 
of  the  Crown  in  the  localities.  In  order  to  permit  of 
the  more  easy  collection  of  such  payments,  the  Crown 
made  contracts  with  the  inhabitants  of  the  town,  in 
accordance  with  which  they  paid  it  a  fixed  sum, 
which  they  were  permitted  to  raise  among  themselves 

*  See  Gneist,  Self  government  ^  etc.^  580-592. 
»3  193 


194  LOCAL  ADMINISTRATION. 

in  such  manner  as  they  saw  fit.  For  the  collection  of 
this  town  quota  there  was  provided  an  officer  called 
the  fermor  or  provost  or  mayor,  who  was  to  be  selected 
as  a  rule  by  the  inhabitants  of  the  town,  their  selection 
being  subject  to  the  approval  of  the  Norman  exchequer, 
and  who  was  to  act  under  its  supervision. 

The  court  leet  was  a  privilege  granted  to  the  inhabi- 
tants of  special  districts  or  to  the  lord  of  a  given 
manor  to  hold  a  special  police  and  Judicial  court  when 
the  inhabitants  of  the  district  were  exempted  from  the 
jurisdiction  of  the  ordinary  court,  to  wit,  the  sheriff's 
tourn.  This  privilege  was  granted  by  the  Crown  gen> 
erally,  in  the  case  of  the  towns,  in  return  for  a  sum 
of  money.  Like  the  jh^ma  hurgi,  it  soon  came  to  be 
regarded  as  a  right.  The  union  of  these  two  privileges 
constituted  a  municipal  borough.  The  townsmen, 
meeting  in  court  leet,  found  it  a  natural  and  easy  mat- 
ter to  assume  such  other  functions  as  were  necessitated 
by  the  presence  of  a  large  number  of  persons  in  a  small 
district.  They  established  rules  as  to  participation  in 
the  court  leet  and  as  to  the  election  of  the  mayor  or 
provost.  The  general  rule  was  that  no  one  should  par- 
ticipate in  the  court  leet  who  did  not  pay  taxes,  was 
not  a  householder,  and  was  not  in  the  eyes  of  the  law 
capable  of  participating  in  the  administration  of  jus- 
tice. In  the  quaint  language  of  the  period,  only  those 
could  be  members  of  the  court  leet  who  were  freemen 
householders,  paying  scot  and  bearing  lot;  and  the 
formal  criterion  of  the  existence  of  these  qualities  in  a 
given  person  was  the  fact  that  he  had  been  sworn  and 
enrolled  in  the  court  leet.  This  body  had  thus  the 
ultimate  decision  as  to  the  qualifications  of  municipal 
citizenship. 


MUNICIPA^'rTR'GANIZATION.  195 

2.  Development  of  the  municipal  council. — This  origi- 
nally simple  and  equitable  organization  was  later  com- 
pletely changed  through  the  acquisition  by  a  large 
number  of  the  boroughs  of  the  right  of  representation 
in  Parliament,  which  was  formed  in  the  time  of  Edward 
I  (1295).  The  amount  of  the  quota  of  the  town  was 
after  the  formation  of  Parliament  fixed  by  that  body, 
so  that  all  that  remained  to  be  done  by  the  town  in 
the  financial  administration  was  to  assess  the  quota 
assigned  to  it  by  Parliament.  This  business  could  be 
transacted  better  by  a  small  committee  of  the  towns- 
men than  by  the  entire  court  leet  or  municipal  assem- 
bly. At  the  same  time  that  this  influence  was  at  work 
the  whole  judicial  system  was  being  completely  changed 
by  the  introduction  of  judges  learned  in  the  law,  by  the 
formation  of  royal  courts,  and  by  the  establishment  of 
the  office  of  justice  of  the  peace,  which  was  introduced 
into  the  urban  as  well  as  the  rural  districts.  Through 
the  formation  of  these  authorities  the  court  leet  lost 
almost  all  its  judicial  functions,  and  was  reduced  to  the 
position  of  a  jury  for  the  determination  of  the  questions 
of  fact  rather  than  of  law.  This  business  could  also 
be  more  easily  attended  to  by  a  committee  than  by  the 
entire  court  leet.  The  result  was  the  formation  of  a 
committee  of  the  original  court  leet  or  assembly  of  the 
municipal  citizens  for  the  transaction  of  both  financial 
and  judicial  business.  This  committee  gradually  as- 
sumed the  performance  of  all  municipal  business  which 
had  sprung  up,  such  as  the  management  of  the  prop- 
erty of  the  municipality,  and  finally  was  composed  of 
the  larger  tax-payers — the  most  important  men  of  the 
town,  who  often  at  the  same  time  were  granted  by  the 
Crown  a  commission  of  the  peace,  as  a  result  of  which 


196  LOCAL  ADMINISTRATLON. 

they  became  justices  of  the  peace  with  the  usual 
powers.  In  the  larger  boroughs  they  had  not  only  the 
commission  of  the  peace  but  also  the  right  to  hold  a 
court  of  quarter  sessions  for  the  city  with  the  usual 
powers.  The  larger  tax-payers  got  these  extensive 
powers  simply  as  a  result  of  the  fact  that  the  smaller 
tax-payers  did  not  avail  themselves  of  their  privileges. 
The  old  basis  of  municipal  rights,  i,  e,,  the  paying  scot 
and  bearing  lot  was  undermined,  and  was  replaced  by 
different  principles,  varying  in  accordance  with  the 
social  and  economical  conditions  of  the  various  boroughs. 
In  those  boroughs  or  cities  which,  like  London,  had  great 
commercial  and  manufacturing  interests  membership 
in  one  of  the  guilds  or  mercantile  companies  became 
the  basis  of  the  right  to  discharge  municipal  functions. 
Thus  was  formed  the  town  council  or  leet  jury  or 
capital  burgesses,  as  the  new  municipal  authority  com- 
posed of  the  important  men  of  the  town  was  called, 
which,  whatever  the  name  that  was  given  to  it,  was 
generally  renewed  by  co-optation.  The  result  was  that 
in  the  fifteenth  century  in  the  towns  as  well  as  in  the 
open  country  the  government  was  administered  by  the 
gentry,  the  gentry  in  the  towns  being  composed  of  the 
persons  who  had  become  rich  in  commerce  and  trade. 

3.  Period  of  incorporation. — Soon  after  this  definite 
form  of  municipal  organization  was  reached,  in  accord- 
ance with  which  the  town  was  controlled  by  a  council 
of  rich  men  chosen  by  co-optation,  the  period  of  munici- 
pal charters  begins  and  the  charters  incorporated  not 
the  inhabitants  of  the  town,  but  the  council  which 
controlled  the  affairs  of  the  town.  The  only  purpose 
of  these  charters  was  to  give  to  these  districts  the  right 
to  hold  property  and  to  sue  and  be  sued.      They  had 


MUNICIPAL  ORGANIZATION.  197 

no  special  political  significance,  they  did  not  grant  any 
new  governmental  powers  to  the  town  authorities. 
The  desire  of  the  Crown  to  control,  through  the  repre- 
sentation in  Parliament  granted  to  the  municipal 
boroughs,  the  composition  of  Parliament  led  the  Crown 
to  make  most  improvident  grants  of  municipal 
charters  carrying  with  them  parliamentary  repre- 
sentation, with  the  result  that  the  municipal  population 
had  for  a  long  time  more  than  its  fair  share  of  repre- 
sentation in  Parliament.  As  the  grant  of  such  charters 
would  not  have  served  the  purpose  of  the  king  if  he 
were  not  able  to  control  the  municipal  elections,  the 
king  strove  so  far  as  he  could  to  put  all  municipal 
powers  into  a  few  hands.  The  courts,  therefore,  which 
were  dependent  upon  the  Crown,  held  that  any  custom 
which  provided  for  the  control  of  the  municipal  ad- 
ministration by  the  narrow  town  council  was  in 
accordance  vnth  public  policy  and  valid.^  Further, 
in  the  early  part  of  the  reigns  of  the  Stuarts  the 
quo  warranto  was  issued  in  many  cases  (81)  to  muni- 
cipal corporations  in  order  to  forfeit  their  charters 
for  irregularities  and  illegal  actions,  and  on  the  ad- 
verse decision  of  the  courts,  new  and  less  liberal 
charters  were  granted.  Many  corporations,  alarmed 
at  the  action  of  the  Crown  and  the  courts,  surren- 
dered their  charters  and  received  new  charters  of  a 
much  less  liberal  character.  All  this  was  done  to 
enable  the  Crown  to  control  the  action  of  the  boroughs 
in  their  election  of  members  of  Parliament.'*  The  re- 
sult was  that  the  municipal  organization  was  so  formed 

*  See  the  case  of  corporations  decided  in  the  time  of  Elizabeth,  Dillon,  op,  cit,^ 
I.,  18  ;  and  Ireland  v.  Free  Borough,  12,  Co.,  120. 

*  See  Dillon,  op.  cii.,  I.,  18  ;  Allinson  and  Penrose,  Philadelphia^  10 ;  Rex  V. 
London,  8  How.  St.  Tr.,  1039,  1340. 


198  LOCAL  ADMINISTRATION. 

and  its  powers  so  prostituted  as  almost  entirely  to 
destroy  its  usefulness  for  administrative  purposes. 
When,  after  the  revolution  of  1688,  the  nobles  and 
gentry  got  the  control  of  the  government  the  case  was 
the  same,  the  only  difference  being  that  the  nobles  in- 
stead of  the  Crown  made  use  of  the  municipal  organi- 
zation in  order  to  control  the  composition  of  Parliament. 
Not  only  was  the  condition  of  the  municipalities  an 
extremely  bad  one,  but  all  hopes  of  reform  were  vain 
so  long  as  either  the  Crown  or  the  nobles  controlled 
the  government.  For  the  composition  of  Parliament 
was  too  valuable  a  power  to  be  given  up  voluntarily 
by  its  holders. 

So  long  as  the  municipal  organization  was  so  de- 
fective, it  was  useless  to  expect  that  the  new  functions 
of  municipal  administration,  the  adoption  of  which  was 
necessitated  by  the  increase  of  population  in  the  cities, 
would  be  put  into  the  hands  of  notoriously  corrupt 
and  unrepresentative  municipal  authorities.  When 
the  parish  administration  grew  up  in  the  time  of  the 
Tudors  it  was  therefore  extended  into  the  cities  as  well 
as  into  the  rural  districts.  In  this  way  the  poor-law 
was  administered  not  by  the  borough  council  but  by 
the  parish  authorities  which  acted  under  the  continual 
supervision  of  the  justices  of  the  peace.  As  it  became 
necessary  to  make  some  provision  for  the  lighting  and 
paving  of  the  streets,  the  course  adopted  for  the 
satisfaction  of  these  needs  was  the  same.  Either  these 
matters  were  entrusted  to  the  parishes  or  special  trusts 
or  commissions  were  formed  for  their  care  by  local  and 
special  legislation  in  particular  cities,  and  the  in- 
habitants were  forced  to  contribute  to  the  expenses  of 
these  branches.^ 

^  Gneist,  Self  government ,  etc.,  595. 


MUNICIPAL  ORGANIZATION.  199 

Such  was  tlie  condition  of  the  English  municipality 
at  the  time  that  America  was  colonized.  The  strictly 
municipal  affairs,  which  were  mainly  such  matters  as 
the  care  of  the  city  property,  the  issue  of  local  police 
ordinances  and  a  certain  power  in  the  administration 
of  justice,*  were  attended  to  by  the  municipal  council 
or  by  its  members  in  their  capacity  as  justices  of  the 
peace  ;  and  this  council  was  chosen  generally  by  co- 
optation.  This  body  did  not  attend  to  all  matters 
affecting  the  welfare  of  the  city  since  many  of  these 
were  entrusted  to  the  parishes  and  other  special 
authorities  and  had  almost  no  functions  to  discharge 
which  related  to  the  general  administration  of  the 
country.  The  form  of  the  municipal  council  was  the 
same  as  it  had  been  during  the  middle  ages.  It  was 
composed  generally  of  the  mayor,  recorder,  aldermen, 
and  councilmen. 

//. — History  of  the  American  municipality, 

1.  The  original  American  municipality. — Just  as  the 
English  system  of  rural  local  government  was  made 
the  model  on  which  the  original  system  of  American 
rural  local  administration  was  formed,  so  the  form  of 
the  municipal  administration,  as  it  existed  in  England 
in  the  seventeenth  century,  was  made  the  model  of  the 
original  system  of  American  municipal  administration. 

In  the  first  place  a  special  organization  was  pro- 
vided from  the  beginning  for  most  of  the  cities 
in  the  colonies.  Only  one  city,  to  wit,  Boston, 
was  ever  governed  in  the  same  way  as  the  rural  towns.^ 
New  York  and  Philadelphia  have,  from  the  beginning 

^  On  account  of  the  fact  that  in  most  cases  a  special  commission  of  the  peace 
was  issued  to  the  cities. 

*  Johns  Hopkins  University  Studies  in  Historical  and  Political  Science,  V.,  79. 


^oo  LOCAL   ADMLNLSTRATION. 

of  their  history  as  English  possessions,  had  charters  or 
forms  of  organization  which  differed  considerably  from 
the  organization  of  the  surrounding  rural  districts. 
The  original  form  granted  by  these  charters  also  re- 
sembled very  closely  the  English  municipal  organization 
of  the  same  period/  The  city  authority  was  the  town 
council,  composed  of  the  mayor,  recorder,  aldermen, 
and  assistants  or  councilmen.  In  this  body  was 
centred  the  entire  municipal  business.  The  ad- 
ministrative powers  were  not,  however,  so  large  as 
they  are  now.  Like  the  English  municipal  cor- 
poration, the  original  American  municipal  corporation 
was  mainly  an  organization  for  the  satisfaction  of 
purely  local  needs,  ^.  e.  for  the  management  of  the 
local  property  and  finances  and  the  issue  of  local 
police  ordinances.  Certain  of  the  officers  of  the 
corporation,  however,  discharged  a  series  of  judicial 
and  police  functions  as  was  the  case  in  the  English 
municipality.  Thus  in  both  New  York  and  Phila- 
delphia, the  mayor,  recorder,  and  aldermen  were  the 
municipal  justices  of  the  peace  and  judges.^  The  af- 
fairs of  the  general  administration  of  the  colony  were 
attended  to  in  the  municipality  by  officers  similar  to 
the  regular  officers  in  the  counties  and  rural  districts.^ 

*  For  New  York,  see  the  Dongati  Charter  of  1686  and  the  Montgomerie 
Charter  of  1730,  to  be  found  in  Kent's  Commentary  on  the  City  Charter  and  Ash, 
Consolidated  Act ;  for  Philadelphia,  see  Penn's  Charter,  J.  H.  U.  S.,  V.,  15. 

'  For  New  York,  Charter  of  1730,  sees.  23,  26,  27,  and  31.  All  the  present 
local  courts  in  New  York  City  with  the  exception,  of  course,  of  the  supreme 
court,  are  simply  outgrowths  of  the  original  judicial  powers  of  the  mayor, 
recorder,  and  aldermen.  The  recorder  has  also  become  an  almost  exclusively 
judicial  officer.     For  Philadelphia,  J.  H.  U.  S.,  V.,  19  and  29. 

^  E,  g.^  for  the  administration  of  the  poor-law  there  were  the  regular  overseers 
of  the  poor  elected  in  the  wards  of  the  city  and  the  expenses  of  this  branch  of 
administration  were  defrayed  by  the  church  parishes.  See  Black,  "  The  History 
of  the  Municipal  Ownership  of  Land  on  Manhattan  Island,"  in  Studies  in  History^ 
etc.,  edited  by  the  University  Faculty  of  Political  Science  of  Columbia  College, 


MUNICIPAL  ORGANIZATION.  201 

One  of  the  results  of  this  purely  local  character  of  the 
American  municipality  was  that  the  town  council  had 
no  power  to  tax  in  order  to  provide  for  the  expenses  of 
the  local  services.  It  was  not  regarded  as  a  sufficiently 
governmental  authority  to  be  endowed  with  this 
attiibute  of  sovereignty.*  A  New  York  law  of  1787 
(chapter  62)  provided  that  the  mayor,  recorder,  and 
aldermen,  as  the  board  of  supervisors  of  the  county  of 
New  York,  were  to  levy  the  taxes  demanded  by  the 
central  government  of  the  commonwealth  of  the  in- 
habitants of  the  city  as  inhabitants  of  the  common- 
wealth, the  principle  of  the  firma  hurgi  having  long 
ago  been  forgotten.  The  city  council  in  New  York, 
with  the  exception  of  the  mayor  and  recorder,  who 
were  appointed  by  the  governor  and  council,  were  by 
the  charter  to  be  elected  by  the  freemen  of  the  city, 
being  inhabitants  and  the  freeholders  of  each  of  the 
wards  into  which  the  city  for  the  purposes  of  adminis- 
tration was  divided.  The  freedom  of  the  city  was 
given  by  the  mayor  and  four  or  more  aldermen  in 
common  council,  generally  in  return  for  the  payment 
of  money  ;  and,  besides  giving  in  the  proper  cases  the 
right  to  vote,  was  the  only  authorization  to  pursue 
certain  trades  within  the  confines  of  the  city.^  In 
Philadelphia  the  council  was,  as  was  so  common  in 
England  at  the  time,  elected  by  co-optation.^  Finally 
the  city  corporation  was,  as  in  England,  regarded  as 
consisting  of  the  city  officers,  i,  e,  the  council,  or  the 
council   and  the   freemen.*  * 

I.,  182  ;  also  J.  H.  U.  S.,  V.,  27.  For  the  collection  of  the  central  colonial  tax 
the  New  York  Charter  provided  for  the  election  of  assessors  similar  to  the  town 
assessors.     See  Charter  of  1730,  sec.  3. 

1  See  Black,  op.  cit.,  i8i  ;  J.  H.  U.  S.,  V.,  22. 

'  See  Kent's  Charter,  note  35.  ^  See  Allinson  and  Penrose,   op,  cii.^  9. 

*  So  in  Philadelphia.     See  Allinson  and  Penrose,  loc.  cit. 


202  LOCAL  ADMINLSTRATION. 

Sucli  was  the  original  position  and  organiza- 
tion of  the  American  municipality.  Since  the  be- 
ginning of  its  history  the  American  municipality  has 
developed  in  two  directions.  In  the  first  place 
the  position  of  the  municipality  and  the,  duties  to 
be  attended  to  by  its  officers  have  greatly  changed. 

2.  Change  in  the  positioii  of  the  municipality, — The 
legislature  of  the  commonwealth  has,  to  a  large  extent, 
lost  sight  of  the  original  purpose  of  the  municipality 
and  has  come  to  regard  it  as  an  organ  of  the  central 
government  for  the  purposes  of  the  general  common- 
wealth administration,  making  little  distinction  between 
central  and  municipal  matters,  and  exercising  over  it 
much  the  same  control  which  it  exercises  over  counties 
and  towns.  Some  of  the  cases  in  the  courts  claim  for 
the  legislature  practically  the  same  powers  over  the 
city  and  its  property  as  the  legislature  possesses  over 
the  counties  and  towns  which,  as  has  been  shown,  are 
regarded  as  mere  administrative  districts  for  the  pur- 
poses of  general  commonwealth  administration.*  Prac- 
tically the  only  point  where  it  is  generally  recognized 
that  the  legislative  control  over  municipalities  is  not  so 
great  as  over  the  quasi  municipal  corporations,  such  as 
counties  and  towns,  is  in  the  case  of  the  private  property 
of  the  municipality,  of  which,  it  has  sometimes  been 
held,  the  legislature  may  not  deprive  the  municipality 
as  it  may  deprive  it  of  its  public  property.^  One 
result  of  the  more  public  character  which  is  assigned 
to  the  municipalities  by  the  American  law  and  develop- 
ment is  that  the  corporation  is  no  longer  regarded  as 

»  See  Darlington  v.  New  York,  31  N.  Y.,  164 ;  U.  S.  v.  B.  &  O.  R.  R.  Co, 
17  Wallace,  322. 
'  Dillon,  op.  cit.,  I.,  110  et  seq.,  and  cases  cited 


MUNICIPAL  ORGANIZATION.  203 

consisting  of  the  officers,  but  consists  of  all  the  people 
residing  within  the  municipal  district,  while  municipal 
suffrage  is  in  most  cases  the  same  as  commonwealth 
suffrage.*  Further,  the  commonwealth  makes  use  very 
frequently  of  the  municipality  or  its  officers  as  agents 
for  the  purposes  of  commonwealth  administration. 
Thus  in  financial  matters,  the  city,  when  of  large  size, 
is  often  made  the  agent  of  the  commonwealth  admin- 
istration for  the  assessment  and  collection  of  taxes ; 
indeed  the  city  itself  is  often  practically  the  tax-payer 
of  certain  of  the  commonwealth  taxes,  e,  g.,  the  general 
property  tax,^  which  it  is  then  to  collect  of  the  owners 
of  property.  Further  in  many,  cases,  where  the  city 
has  not  been  made  directly  the  agent  of  the  central 
commonwealth  administration,  in  that  it  itself  through 
its  officers  is  to  attend  to  certain  matters  of  general 
interest,  the  expense  of  a  long  series  of  matters  is 
often  devolved  upon  the  city.  This  is  particularly 
true  of  the  matter  of  education.'  The  board  of 
education,  which  has  control  of  the  educational  ad- 
ministration within  the  limits  of  the  city,  and  which 
is  usually  regarded  as  a  separate  qiiasi  municipal  cor- 
poration, is  usually  elected  by  the  people  residing 
within  the  district.  In  some  cases,  however,  this  body 
is  appointed  by  the  municipal  authorities,  as  e.g,  in  New 
York  and  Brooklyn  ^ ;  in  others  it  is  appointed  by  the 
legislature,  as  in  Baltimore.^  Finally  municipal  officers 
are  often  made  use  of  for  the  purposes  of  general  com- 
^  Ibid.,  70. 

*  It  is  to  be  noted,  however,  that  the  city  has  very  generally  been  granted  the 
local  taxing  power.  Ibid. ,  69.  It  is  no  longer  compelled  to  defray  its  municipal 
expenses  from  the  revenue  of  its  property. 

'  Cf.  Bryce,  American  Commonwealth,  I.,  599. 

*  N.  Y.  L.  1882,  c.  410,  sec.  1022;  N.  Y.  L.  1888,  ch.  5,  title  xvii.,  sec.  i. 

*  Bryce,  op.  cit.,  I.,  596,  599. 


204  LOCAL  ADMINISTRATION. 

monwealth  administration.  Thus  in  most  of  the  large 
cities  municipal  officers,  either  elected  by  the  people  of 
the  city  or  appointed  by  the  municipal  authorities,  are 
entrusted  with  the  care  of  the  public  health  and  the 
support  of  the  poor,  attend  to  election  matters,  and  have 
a  series  of  duties  to  perform  relative  to  the  administra- 
tion of  judicial  affairs,  such  as  the  making  up  of  the 
jury  lists. 

In  certain  cases  duties,  which  were  in  old  times  en- 
trusted to  the  municipalities  or  their  officers,  have  been 
assumed  by  the  central  commonwealth  administration. 
Thus  the  preservation  of  the  peace  has  in  several  of  the 
large  cities  been  put  into  the  hands  of  a  commission 
appointed  by  the  central  government  of  the  common- 
wealth.^ Further  the  courts  of  several  of  the  common- 
wealths have  held  that  the  preservation  of  the  peace  is 
not  a  municipal  function.^ 

What  is  true  in  exceptional  cases  of  the  preservation 
of  the  peace  is  almost  universally  true  of  the  adminis- 
tration of  justice,  which  is  no  longer  regarded  as  a 
matter  of  local  concern,  but  as  a  matter  which  should 
be  attended  to  in  accordance  with  a  uniform  system 
throughout  the  commonwealth.  The  courts  which  act 
at  the  present  time  in  the  various  municipalities  are 
not  municipal  but  commonwealth  courts.  Their  ex- 
penses may,  it  is  true,  be  paid  in  large  part  by  the 

*  This  is  so  in  Boston,  where  the  care  of  the  police  is  given  to  a  board  of 
police,  appointed  by  the  governor  and  council  of  the  commonwealth.  Mass. 
L.  of  1885,  c.  323.  In  Nebraska  the  boards  of  police  and  fire  commissioners 
in  cities  of  over  80,000  inhabitants  are  appointed  by  the  governor.  Compiled 
Statutes  1889,  pp.  147,148.  See  for  St.  Louis,  J.  H.  U.  S.,  VII.,  186.  In  Bal- 
timore the  board  of  police  is  appointed  by  the  legislature  of  the  commonwealth. 
See  Allinson  and  Penrose,  Philadelphia,  $2g. 

'  People  V.  Draper,  15  N.  Y.,  532  ;  Baltimore  v.  Board  of  Police,  15.  Md., 
376.  ;  People  v.  Mahaney,  13  Mich.,  481.  ;  cf.  Dillon,  op.  cii.,  I.,  102. 


MUNICIPAL  ORGANIZATION.  205 

municipalities  in  which  they  act,  but  the  judges  and 
their  subordinate  officers  are  not  regarded  as  municipal 
officers/  An  exception  to  this  rule  may  be  found  in 
the  case  of  the  local  tribunals  called  by  different  namQs, 
such  as  the  mayor's  court,  the  recorder's  court,  and  the 
like.^  These  may  be  regarded  as  municipal  courts 
when  the  judges  who  form  them  are  elected  by  munici- 
pal electors  or  appointed  by  the  municipal  authorities, 
and  when  they  have  jurisdiction  over  municipal  ordin- 
ances only.  In  some  cities  the  aldermen  still  discharge 
judicial  functions. 

Further,  the  cities  themselves  have  largely  lost  the 
power  of  regulating  their  own  purely  municipal  affairs. 
For  the  central  government  of  the  commonwealth  has 
decided,  in  many  instances,  to  exercise  its  undoubted 
legal  right  to  regulate  even  purely  local  affairs. 
Further,  while  at  one  time  city  charters  were  seldom 
changed  or  amended  by  the  legislature  without  the 
consent  of  the  city  authorities  or  that  of  the  people 
within  the  city,  at  the  present  time  changes  are  made 
therein  continually  without  even  asking  the  opinion 
of  the  city.  Many  bills  affecting  the  welfare  of  the 
cities  are  rushed  through  the  legislature  on  the  sugges- 
tion of  the  local  member,  who  does  not  in  all  cases 
represent  the  desires  or  the  true  interests  of  the  city. 
The  American  idea  at  the  present  time  seems  to  be 
that  the  city  does  not  any  more  than  the  county  have 
the  right  to  regulate  its  own  local  affairs;  that  the 

'  Dillon,  op.  cit.,  I.,  99,  and  cases  cited.  The  action  of  the  Civil-Service 
Commission  in  New  York  in  classifying  the  officers  in  the  courts  as  common- 
wealth rather  than  municipal  officers  shows  what  is  the  general  opinion  as  to  the 
character  of  the  function  of  administering  justice. — Sixth  Report  of  the  New 
York  Civil- Service  Commission,  448. 

^Dillon,  op.  di.,  I.,  492. 


2o6  LOCAL   ADMLNISTRATLOJS/ . 

municipal  authorities  are  largely  the  agents  of  the 
central  commonwealth  government,  indeed  that  the 
city  itself  is  simply  an  administrative  district  possess- 
ing, it  is  true,  corporate  powers,  but  possessing  no 
sphere  of  action  of  its  own  in  which  it  should 
decide  for  itself  what  it  shall  do  and  what  it  shall  not 
do.^  Few  are  the  constitutional  provisions  which  pro- 
tect a  city  against  the  interference  of  the  common- 
wealth legislature ;  and  the  legislatures  of  some  of  the 
commonwealths  are  too  prone  to  take  advantage  of  the 
unprotected  position  of  the  municipalities  to  interfere 
in  matters  which  might  be  much  better  regulated  by 
the  municipalities  themselves.  The  true  sphere  of  the 
municipality  as  an  organ  for  the  satisfaction  of  local 
needs  in  accordance  with  the  wishes  of  the  inhabitants  ^ 
is  being  in  many  cases  overlooked,  and  the  city  is 
coming  to  be  regarded,  very  much  as  the  county,  as 
simply  an  agency  of  the  central  commonwealth  govern- 
ment. 

3.  Change  in  the  organization  of  the  municipality, — 
In  the  second  place  the  old  plan  of  consolidating  all 
the  administrative  functions  of  the  city  corporation  in 
the  town  council  has  been  abandoned.  There  has 
very  generally  been  made  a  clear  distinction  between 
the  function  of  deliberation  and  the  function  of  execu- 
tion, the  former  being  possessed  by  the  council  from 


^  See  the  case  of  U.  S.  v.  The  Baltimore  and  Ohio  R.R.  Co.,  17  Wallace, 
322,  where  the  court  says  :  '  *  A  municipal  corporation  .  .  .  is  a  representative 
not  only  of  the  state,  but  is  a  portion  of  its  governmental  power.  It  is  one  of 
its  creatures  made  for  a  specific  purpose,  to  exercise  within  a  limited  sphere  the 
powers  of  the  state.  The  state  may  govern  .  .  .  the  local  territory  as  it  governs 
the  state  at  large.  It  may  enlarge  or  contract  its  powers  or  destroy  its  exists 
ence." 

*  Dillon,  op.  cit.,  I.,  38. 


MUNICIPAL  ORGANIZATION.  207 

which  the  mayor  has  been  excluded,  the  latter  being 
granted  to  the  mayor  and  the  various  executive  depart- 
ments which  have  in  the  course  of  time  been  estab- 
lished.* This  separation  of  the  function  of  deliberation 
from  that  of  execution  was  made  in  Philadelphia  in 
1789  "^  and  in  New  York  in  1830.^  The  first  charter  of 
Boston,  granted  in  1822,  however,  permitted  the  mayor 
to  be  a  member  of  the  council/  Since  1830  most  city 
charters  have  provided  for  this  separation  of  the 
deliberative  and  executive  functions.^ 

///. —  The  present  organization  of  the  American  municipality, 

1.  The  mayor  and  the  executive  d&pa/rtments. — When 
the  mayor  was  first  excluded  from  the  council  he  was 
to  be  elected  by  the  council.^  In  Philadelphia  the 
mayor  was  elected  by  the  council  as  late  as  1839,^ 
but  in  Boston  by  the  very  first  charter  the  mayor  was 
elected  by  the  people  of  the  city.^  This  seems  to 
be  the  rule  at  the  present  time.^     His  term  of  office 

^  The  recorder,  it  is  to  be  noted,  has  become  an  almost  exclusively  judicial 
officer,  though  in  some  cases  his  functions  show  traces  of  his  original  position  as 
a  member  of  the  council  \  e.  g.y  in  the  city  of  New  York  at  the  present  time  the 
recorder  is  a  member  of  the  sinking-fund  commission,  the  reason  being  that  he 
was  a  member  of  that  commission  before  his  position  as  a  judicial  officer  had 
been  determined.     See  Consolidation  Act  of  1882,  c.  410,  sec.  170. 

«J.  H.  U.  S.,V.,  34. 

'  L.  1830,  c.  122,  sec.  15. 

*J.  H.  U.  S.,  v.,  96. 

^  See  outline  of  the  ordinary  municipal  charter  in  the  United  States  given  in 
Dillon,  op.  cit.,  I.,  68.  In  Chicago  and  San  Francisco,  however,  the  mayor  at 
the  present  time  sits  in  the  council.  Bryce,  American  Commonwealth^  I.,  595, 
note  5  ;  Dillon  says,  op.  cit.,  I.,  291,  that  "the  mayor  is  frequently  declared  to 
be  a  member  of  the  council." 

^  E.  g.,  see  N.  Y.  Const,  of  1821,  art.  4,  sec.  10. 

'J.  H.  U.S.,  v.,  34. 
8  Ibid.,  96. 

'  In  New  York  this  was  provided  in  1834  ;  L.  1834,  c.  23  ;  in  Philadelphia  in 
1839,  J-  H.  U.  S.,  v.,  35  ;  cf.  Dillon,  op.  cii.,  I.,  69  ;  Bryce,  op.  cii.,  I.,  594. 


2o8  LOCAL  ADMLNISTRATION. 

varies  from  one  year  in  Boston  to  four  years  in  Phila- 
delphia/ 

The  ordinary  charter  provides  that  the  mayor  shall 
be  the  chief  executive  of  the  city.  But  this  really 
means  nothing  more  than  the  same  phrase  v^ith  refer- 
ence to  the  President  or  the  governor.  That  is,  few  if 
any  powers  are  to  be  assumed  as  existing  in  the  mayor 
as  the  result  of  the  existence  of  such  a  provision  in  the 
charter.  The  only  power  which  can  be  derived  from 
it  is  that  the  mayor  is  to  execute  the  laws  within  the 
city,  which  in  its  turn  really  means  little  more  than 
that  he  is  to  "  provide  for  the  public  peace,  quell  riots, 
and  if  necessary  call  out  the  militia,"  ^  though  this  duty 
is  primarily  that  of  the  sheriff  as  the  chief  conservator 
of  the  peace  of  the  county. 

While  originally,  and  even  after  the  grant  to  the 
mayor  of  the  executive  functions  in  the  city  govern- 
ment, the  mayor  had  little  power  of  appointing  the 
various  city  officers,  the  whole  tendency  of  American 
municipal  development  has  been  to  increase  this  power 
of  appointment.  Originally  there  were  no  city  ex- 
ecutive departments  such  as  are  now  to  be  found  in 
such  numbers  in  all  large  American  cities,  but  the  ad- 
ministrative matters  of  the  cities  were  attended  to  in 
their  details  by  committees  of  the  council,  which  it- 
self had  the  appointment  of  most  of  the  subordinate 
officers,  and  could  arrange  and  distribute  the  municipal 
business  as  it  saw  fit.  Later  the  council  formed,  often 
by  ordinance,  separate  executive  departments.  Thus, 
in  New  York,  the  charter  of  1830  provided  that  the 
executive  business  should  be  attended  to  by  depart- 

*  J.  H.  U.  S.,  v.,  117  ;  Pa.  Law,  June  ist,  1885,  art.  i,  sec.  i. 
'Bryce,  op.  cit.,  I.,  595. 


MUNICIPAL  ORGANIZATION,  209 

ments  which  were  to  be  organized,  and  whose  heads 
were  to  be  appointed  by  the  common  council/  The 
same  power  was  possessed  by  the  council  of  Phila- 
delphia, and  that  of  Boston.^  But  soon  after  the 
council  lost  the  power  of  electing  the  mayor,  it  lost 
also  in  many  cases  the  power  of  organizing  the  city 
executive  departments  and  of  designating  their  heads.^ 
Where  the  organizing  power  has  been  lost,  it  has 
been  lost  through  the  fact  that  many  departments  have 
been  organized  by  statutes  of  the  legislature.  For  the 
general  rule  of  law  is  that  what  has  been  fixed  by 
statute  cannot  be  changed  by  ordinance.-*  In  certain 
cases  it  would  seem  that  the  council  still  possesses  the 
organizing  power.s  The  taking  away  from  the  council 
of  the  power  of  designating  the  heads  of  the  executive 
departments  seems  to  have  been  a  result  of  the 
movement  which  resulted  so  generally  in  the  elec- 
tion of  the  mayor  by  the  people  of  the  city  and  of 
the  heads  of  the  commonwealth  executive  departments 
by  the  people  of  the  commonwealth.  This  spirit  of 
democratic  government  which  was  so  strong  at  the 
middle  of  the  century  resulted  also  in  the  election  of 
most  of  the  heads  of  executive   departments   in   the 

^  See  also  the  Corporation  Ordinances,  revised  1845. 

2  J.  H.  U.S.,  v.,  36  and  97. 

'  See,  e.  g.,  N.  Y.  L.,  1849,  c.  187,  sec.  20. 

*  Cf.  Kearney  v.  Andrews,  2  Stockton,  N.  J.,  70;  White  v.  Tallman,  2 
Dutch,  N.  J.  67. 

^  Thus  in  Boston,  to  a  certain  extent,  J.  H.  U.  S.,  V.,  116  et  seq.;  St. 
Louis,  Ibid.,  154  ;  New  Orleans,  Ibid.,  VII.,  173.  In  New  York  the  board  of 
alderntien  have  still  the  power  to  make  by  ordinance,  regulations  other  than 
those  specially  authorized  by  law  "for  fuller  organization,  perfecting,  and 
carrying  out  the  powers  and  duties  prescribed  to  any  department."  Consoli- 
dated Act  of  1882,  c.  410,  sec.  85.  By  common  law  finally  the  council  has  the 
right  to  create  offices  as  incidental  to  its  express  powers.  See  Dillon,  op.  cit.,  I., 
290,  and  cases  cited. 


2IO  LOCAL  ADMINISTRATION. 

municipalities  by  the  people  of  the  municipality. 
This  was  the  case  in  New  York  in  1846,  and  for  quite 
a  time  thereafter,  and  is  to  a  certain  extent  the  case  at 
the  present  time  in  the  cities  of  Boston,^  of  St.  Louis,^ 
and  of  Nfew  Orleans.^  Lately,  however,  there  has  been 
a  reaction  against  this  tendency.  It  has  been  believed 
of  late  that  the  mayor's  powers  should  be  increased,, 
and  that  he  should  be  in  reality  as  well  as  in  name  the 
chief  executive  officer  in  the  city  government,  and 
should  have  a  large  power  of  determining  who  shall 
be  his  subordinates.  Therefore  almost  all  the  later 
charters  have  granted  to  the  mayor  a  very  large  power 
of  appointment.  The  only  general  exception  to  this 
rule  that  the  heads  of  departments  are  appointed  by 
the  mayor  is  to  be  found  in  the  case  of  the  officer  who 
has  charge  of  the  municipal  finances,  who  is  almost 
universally  elected  even  now  by  the  people  of  the  city. 
This  officer  is  called  the  comptroller  or  treasurer.*  A 
further  exception  to  the  rule  that  the  mayor  appoints 
the  heads  of  departments  is  often  to  be  found  in  the 
case  of  the  head  of  the  department  of  public  works, 
and  in  some  instances  in  the  case  of  the  heads  of  other 
departments.^  But  though  the  tendency  of  the  later 
charters  is,  as  said,  towards  increasing  the  power  of 
appointment   of  the  mayor,  still  there  are  many  city 

'J.  H.  U.  S.,  v.,  wtetseq, 

'  Ibid.,  io6,  171. 

^  Ibid.,WU.,iTi. 

*  For  New  York  see  L.  1884,  c.  73  ;  Philadelphia  and  St.  Louis,  J.  H.  U., 
S.,  v.,  68,  171  ;  New  Orleans,  Ibid.,  VII.,  173  ;  Brooklyn  and  Chicago,. 
Allinson  and  Penrose,  Philadelphia,  298,  331.  This  is  not,  however,  the  case 
in  Boston  and  Baltimore,  where  the  mayor  appoints  the  treasurer  or  comptroller. 
Ibid.,  329  ;  J.  H.  U.  S.,  v.,  114,  123. 

^  This  is  especially  true  of  Boston,  St.  Louis,  and  New  Orleans,  J.  H.  U.  S.,. 
v.,  118  et  seq.  ;  170  ei  seq.  ;  VII.,  173. 


MUNICIPAL  ORGANIZATION.  211 

charters  which  provide  for  the  election  by  the  people 
of  the  city  of  the  heads  of  the  executive  departments. 
Where  the  mayor  possesses  the  povrer  of  appointing 
the  heads  of  executive  departments,  the  general  rule 
is  that  his  appointments,  to  be  valid,  i^^^rec^ive 
the  approval  of  the  whole  city  council  or^R  01  its 
branches.  Here,  however,  again  the  tendency  of  the 
later  charters  is  to  throw  the  entire  responsibility  for 
filling  the  office  of  head  of  executive  department  upon 
the  mayor,  who  is  not  obliged  to  get  his  appointment 
confirmed  by  the  city  council.  This  is  true  in  New 
York,  Brooklyn,  and  Philadelphia.* 

This  increase  in  the  power  of  appointment  of  the 
mayor  has  in  some  cases  been  accompanied  by  the 
grant  to  him  of  the  power  of  removal.  Of  the  larger 
cities  Philadelphia  and  Boston  give  to  the  mayor 
absolute  power  of  removing  officers  whom  he  appoints  ^ ; 
but  in  most  of  the  cities  the  removal  of  an  officer  is 
conditioned  upon  obtaining  the  consent  of  the  common 
council  or  a  branch  thereof.^  A  peculiar  rule  has  been 
adopted  in  New  York  and  Brooklyn.  In  New  York 
the  mayor  may  remove  the  heads  of  the  executive 
departments,  but  only  for  cause,  and  subject  to  the 
confirmation  of  the  governor  of  the  commonwealth.*  In 
Brooklyn  the  heads  of  departments  are  removed  for 
cause  by  the  courts  on  the  application  of  the  mayor.s 
It  should  be   noticed,  however,  that  in  many  cases 

^  N.  Y.  L.  1884,  c.  43 ;  N.  Y.  L.  1888,  c.  583  ;  Allinson  and  Penrose,  op. 
ciU,  298,  329,  331.  For  Boston  and  St.  Louis  which  require  the  confirmation 
of  the  council  or  a  branch  thereof,  see  J.  H.  U.  S.,  V.,  120  et  seq. 

«  Pa.  Law,  June  i,  1885,  art.  i,  sec.  i  ;  J.  H.  U.  S.,  V.,  117. 

'  St.  Louis,  where  the  same  rule  applies  to  the  elected  officers  also,  J.  H.  U. 
S.,  v.,  156  ;  Chicago,  Allinson  and  Penrose,  op.  cit.,  331. 

•»  N.  Y.  L.  1882,  c.  410,  sec.  108. 

»  N.  Y.  L.  1888,  c.  583. 


212  LOCAL   ADMINISTRATION. 

the  terms  of  the  heads  of  departments  are  not  the 
same  as  that  of  the  mayor,  so  that  if  he  does  not 
possess  the  power  of  removal,  he  may  not,  on  coming 
into  office— fill  these  positions  as  he  may  wish/  The 
charter^Hp*ooklyn,  however,  recognizes  that  the  coin- 
cidence^^ tlfc  terms  of  the  heads  of  executive  depart- 
ments with  that  of  the  mayor  is  an  important  means  of 
securing  administrative  harmony  and  efficiency.^  As 
a  general  thing  the  city  charters  do  not  recognize  in 
the  mayor  any  power  to  direct  the  actions  of  the  heads 
of  departments,  but  where  he  possesses  the  absolute 
power  of  removal  he  must  perforce  practically  possess 
such  a  power.  As  this  power  of  removal  is  very  slight 
in  most  cases,  it  cannot  be  said  that  the  mayor  possesses 
any  large  powers  of  directing  the  heads  of  departments 
how  they  shall  perform  their  duties.  Generally, 
however,  the  later  charters  do  provide  that  the  mayor 
may  call  on  the  heads  of  departments  for  reports  as  to 
the  workings  of  their  departments,  and  in  several 
instances  give  the  mayor  the  right  to  examine  their 
accounts.^ 

In  addition  to  these  powers  over  the  'personnel  of 
the  city  official  service,  the  mayor  often  has  powers 
relating  to  the  several  administrative  services  of  a 
material  rather  than  a  personal  character.  Thus  the 
mayor  has,  as  a  usual  thing,  the  power  to  veto  all  the 
ordinances  of  the  common  council  and  in  the  case  of 
ordinances  making  appropriations  to  veto  the  specific 
items  which  seem  to  him  improper.     This  veto  may  be 

^  E.  g.  see  St.  Louis,  Boston,  J.  H.  U.  S.,  V.,  121-3,  156  ;  New  York,  N. 
Y.  L.  1882,  c.  410,  sees.  34-45. 

^  N,  Y.  L.  1888,  c.  583  ;  cf.  Allinson  and  Penrose,  op.  cU.^  289. 

^Phila.,  Pa.,  L.  June  i,  1885,  art.  i  ;   N.  Y.  L.  1882,  c.  410,  sees,  no,  164. 


MUNICIPAL  ORGANIZATION. 


213 


overridden  by  a  two-thirds  vote  of  the  council.*  Finally 
in  many  cases  the  mayor  is  an  ex-officio  member  of 
certain  special  boards  which  have  been  established  to 
attend  to  certain  matters  affecting  the  city  welfare.'^ 

2.  The  municipal  council. — The  same  l|^of  con- 
fidence in  the  council  which  has  led  to  4ts^^Pntegra- 
tion  and  to  the  establishment  of  the  mayor  separate 
and  apart  from  it  with  an  increasingly  greater  number 
of  powers  over  the  executive  official  service  of  the  city, 
has  led  in  certain  instances  to  a  great  decrease  in  the 
powers,  regarded  as  distinctively  deliberative  in  char- 
acter, which,  at  the  time  of  the  attempted  separation 
of  the  executive  and  deliberative  functions,  were  re- 
served to  the  council.  By  the  original  charters  and  by 
the  common  law  it  was  recognized  that  the  city  council, 
as  the  representative  of  the  city  corporation  had  a  wide 
power  of  police  ordinance.^  This  formerly  wide-reach- 
ing ordinance  power  has  been  curtailed  quite  generally 
either  by  the  fact  that  the  legislature  has  itself  fixed 
in  detail  the  sanitary  or  other  police  regulations  which 
shall  be  observed  by  the  inhabitants  of  the  city,-*  or 
has  granted  the  ordinance  power  to  the  heads  of  the 
various  executive  departments  of  the  city  adminis- 
tration.^ 

Further  the  attempt  has  been  made  in  some  of  the 

*  So  in  Boston,  J.  H.  U.  S.,  V.,  117  ;  St.  Louis,  Ibid.,  157  ;  Philadelphia, 
Pa.,  Law,  June  i,  1885  ;  cf.  Bryce,  op.  cii.,  I.,  595. 

'  See,  e.  g.,  Philadelphia,  Pa.,  Law,  June  i,  1885,  art.  i. 

'  See  as  to  Boston,  J.  H.  U.  S.,  V.,  119  ;  as  to  Philadelphia  and  the  Penn- 
sylvania corporations,  Wartman  v.  City,  33  Pa.  St.,  202,  209  ;  Dillon,  op.  cit., 
I.,  392. 

*  E.  g.  see  the  case  of  New  York  City  L.  1882,  c.  410,  sees,  86,  310,  330, 
393,  440  et  passim. 

^  E.  g.  take  the  cases  of  Boston,  J.  H.  U.  S.,  V.,  121,  122,  and  St.  Louis, 
Ibid.,  167. 


214  LOCAL  ADMLNLSTRATION, 

larger  cities  of  the  common  weal  tli  of  New  York  to 
curtail  very  largely  the  power  of  the  council  over  the 
finances  of  the  city.  While  the  original  city  corpora- 
tion did  1^^  possess  the  taxing  power  for  local  mat- 
ters, the^Hllution  of  the  expenses  of  so  many  matters 
of  centrl^onSern  upon  the  cities,  as  well  as  the  neces- 
sary assumption  by  the  city  corporation  of  so  many 
new  branches  of  administration,  made  necessary  by 
the  greater  complexity  of  modern  municipal  life,  has 
made  it  necessary  to  give  to  the  city  corporation  the 
taxing  power.^  That  is,  the  legislature  designates  the 
kind  of  taxes  whicli  the  city  may  raise  and  leaves  to 
the  city  authorities  the  fixing  of  their  amount,  in  some 
cases,  as  e,  g.  in  Boston,  limiting  the  rate  which  may 
be  levied."^  The  municipal  authority  which  originally 
received  tbe  taxing  power  was  the  city  council.  This 
seems  to  be  the  rule  at  the  present.  But  in  New  York 
and  Brooklyn  this  did  not  seem  to  work  satisfactorily, 
and  the  scheme  has  been  devised  of  really  limiting  the 
amount  of  taxes  which  may  be  raised  by  the  council 
by  taking  away  from  it  the  power  of  making  the  ap- 
propriations, for  the  purpose  of  paying  which,  resort 
has  to  be  had  to  taxes.  In  these  two  cities  the  power 
of  making  the  appropriations  has  been  given  to  a 
board  of  executive  officers,  of  whom  the  mayor  is  one, 
differently  constituted  in  the  different  cities.  In  Brook- 
lyn the  council  has  the  right  to  cut  down  but  not  to 
raise  the  appropriations  made  by  this  board ;  in  New 
York  the  board  of  aldermen  may  not  change  them  in 
any  way.^   In  general,  however,  it  is  the  council  whicli 

'  Dillon,  op.  cit.y  I.,  69. 
'J.  H.  U.  S.,V.,  114. 

3  N.  Y.  L.  1888,  c.  583,  title  ii.,  18.     N.  Y.  L.  1882,  c.  410,  sec.   189.     See 
also  Allinson  and  Penrose,  op.  cit,^  300. 


MUNICIPAL  ORGANIZATION.  215 

has  the  power  of  making  the  appropriations  necessary 
to  carry  on  the  city  government.  But  it  must  be  re- 
membered that  the  tendency  in  all  the  commonwealths 
is  for  the  legislature  to  enumerate  in  detail  the  objects 
for  which  municipal  expenditure  may  bi  incurred. 
Sometimes  this  tendency  is  carried  so  far  «^  to  enu- 
merate in  statutes  the  salaries  of  many  of  the  officers 
of  the  city  government.  Nothing  is  more  common  in 
some  of  the  commonwealths  than  for  the  legislature  to 
interfere  to  raise  the  salaries  of  certain  of  the  city 
officers  who  have  political  "influence"  without  con- 
sulting the  city  authorities  in  any  way.^  Where  the 
legislature  has  thus  fixed  in  detail  the  work  of  the  city 
and  the  salaries  of  its  officers  the  power  of  appropria- 
ting money  loses  almost  altogether  its  discretionary 
character  and  becomes  little  more  than  an  arithmetical 
process,  a  purely  ministerial  act  whose  performance 
may  be  enforced  by  the  courts  on  the  application  of 
any  person  interested  in  having  the  particular  appro- 
priation made.^  An  extreme  example  of  this  tendency 
to  ^^  in  detail  the  work  of  the  city  and  the  salaries 
of  its  officers  by  legislative  enactment  is  to  be  found 
in  the  city  of  New  York.^  In  Philadelphia,  however 
the  councils  seem  to  have  quite  a  large  power  over  the 
appropriations/  and  in  all  cities  the  authority  for 
making  the  appropriations,  generally  the  council,  may 
provide  for  certain,  though  not  for  many,  optional  ex- 
penses whose  amount  also  it  has  the  power  to  fix. 

'  Cf.  Pres.  Seth  Low  in  his  chapter  on  "  Municipal  Government  "  in  Bryce, 
American  Commonwealth,  I.,  630. 

2  People  ex  rel.  Wright  v.  Common  Council  of  Buffalo,  16  Abbott's  New- 
Cases  affirmed  in  38  Hun  N.  Y.,  637. 

'  See  L.  of  1882,  c,  410,  sec.  52  et passim. 

^  See  an  ordinance  of  the  councils  of  date  Dec.  30,  1886,  cited  in  Allinson 
and  Penrose,  op.  cit.,  359. 


2i6  LOCAL  ADMINISTRATION, 

The  form  of  the  city  council  has  been  subjected  to 
considerable  change.  In  some  cases  it  is  formed,  as 
originally,  of  a  single  body,  as  e,  g,  in  New  York, 
Brooklyn,  and  Chicago^;  in  others,  of  two  chambers, 
as  e.  g,  in  Boston,  Baltimore,  St.  Louis,  and  Philadel- 
phia.^ The  members  of  the  council,  whether  it  con- 
sists of  a  single  body  or  of  two  chambers,  are  elected 
by  the  people  of  the  city,  which  is  often  differently 
districted  for  each  chamber  where  the  two-chamber 
system  has  been  adopted.  In  one  case,  St.  Louis,  the 
members  of  the  smaller  chamber  are  elected  on  a  gen- 
eral ticket.^  In  Brooklyn  also  a  certain  number  of  the 
aldermen  are  called  aldermen  at  large  and  are  elected 
by  general  ticket,  though,  when  elected,  they  form 
part  of  the  single  chamber  of  which  the  council  is 
composed.*  In  no  instance  do  we  find  an  instance  of  a 
self-perpetuating  council,  though  this  was  the  case  in 
Philadelphia  as  under  the  old  English  system.^  In  one 
case  we  find  minority  representation.  This  is  Chicago.^ 
The  term  of  ofiice  of  the  members  of  the  council  varies 

*  N.  Y.  L.  1882,  c.  410,  sec.  29  ;  Allinson  and  Penrose,  op.  cit.,  331. 

*  J.  H.  U.  S.,  v.,  118,  157  ;  Allinson  and  Penrose,  op.  cii.,  331. 
"J.  H.  U.S.,  v..  157. 

*  N.  Y.  L.  1888,  c.  583,  title  ii.,  3. 
»J.  H.  U.S.,  v.,  IS  etseq. 

•Allinson  and  Penrose,  op,  cit.,  331.  The  authors  of  this  book  adduce  New 
York  as  a  place  where  the  principle  of  minority  representation  has  been  adopted 
in  the  board  of  aldermen.  This  is  a  mistake,  but  a  natural  one.  For  the  con- 
solidated act  provides  for  minority  representation  (sec.  29).  This  provision 
was  taken  from  L.  1873,  c.  335,  sec.  4,  as  amended  by  L.  1878,  c.  400,  but  is  to 
be  read  in  connection  with  Laws  of  1882,  c.  403,  which  provides  for  representa- 
tion of  the  majority  alone.  The  fact  that  the  consolidated  act  bears  a  later 
date  than  that  of  the  chapter  of  the  laws  of  1882  providing  for  majority  repre- 
sentation does  not  affect  the  validity  of  chapter  403  of  the  laws  of  1882,  since 
the  last  section  of  the  consolidated  act  provides  that  it  shall  be  regarded  as 
passed  on  January  i,  1882.  Section  29  of  the  consolidated  act  is  therefore 
amended  by  chapter  403  of  the  laws  of  1882. 


MUNICIPAL  ORGANIZATION.  217 

from  one  year  as  in  New  York/  to  four  years  as  in  St. 
Louis.^  Where  the  bicameral  system  has  been  adopted 
for  the  council  the  term  of  the  members  of  the  smaller 
chamber  is  often  longer  than  that  of  the  members  of 
the  larger  chamber.^  Generally  the  council  is  totally 
renewed  at  one  time.  But  in  some  cases,  as  e.  g.  St. 
Louis/  one  half  only  retire  on  the  occasion  of  a  coun- 
cil election. 

As  a  general  rule  all  the  officers  of  the  United 
States  municipality  are  salaried,  with  the  exception,  in 
some  cases,  of  the  members  of  the  council,  and  service 
is  as  a  rule  voluntary,  though  this  was  not  originally 
the  rule.s  For  the  higher  positions  even,  no  special 
technical  qualifications  for  office  are  provided  as  a  gen- 
eral thing,  but  for  the  lower,  especially  in  the  case  of 
the  clerical  service,  the  appointment  is  made  often  as  a 
result  of  competitive  examinations.^  This  is  so  in  the 
commonwealths  of  New  York  and  Massachusetts  and 
the  city  of  Philadelphia.^ 

The  elections  by  which  so  many  of  the  positions  in 
the  city  service  are  filled  are  generally  by  universal 
suffrage.  The  only  important  exception  to  this  rule  is 
to  be  found  in  the  case  of  those  commonwealths  which 
have  made  provision  for  registration  laws.  Sucli  laws 
really  provide  an  unlimited  lodger  suffrage  with,  how- 
ever, a  very  short  term  of  residence  within  the  city, 

*  L.  1882,  c.  410,  sec,  29. 
»J.  H.  U.  S.,V.,  157. 

*  See,  e.  g. ,  the  charter  of  St.  Louis  where  the  term  of  office  of  the  members 
of  the  "  council,"  as  the  smaller  branch  is  called,  is  four  years  and  that  of  the 
house  of  delegates  is  only  two  years.     J.  H.  U.  S.,  V.,  157,  158. 

*J.  H.  U.  S.,  v.,  85. 

^  B.  g.  see  the  early  New  York  charters. 

*  See  the  proposal  made  by  Pres.  Eliot  in  TAe  Forum,  October,  1891. 
'See  infra,  II.,  p.  35. 


2i8  LOCAL  ADMINISTRATION. 

sometimes  as  low  as  one  month,  and  seldom  longer 
than  six  months.  In  one  city,  however,  wk,  Philadel- 
phia it  is  said  that  most  of  the  voters  are  freeholders  or 
rent  payers.  This  would  seem  to  be  the  result  of  the 
peculiar  social  conditions  of  the  city.^  The  conditions 
of  eligibility  are  generally  the  same  as  those  for  electors, 
though  in  one  or  two  instances  in  order  to  be  qualified 
for  office  it  is  necessary  for  the  elector  to  be  assessed 
at  a  certain  amount  for  the  purposes  of  taxation.^ 

IV. —  The  village  or  borough. 

1.  General  position. — The  city  is  not,  however,  the 
only  municipality  known  to  the  American  law.  In 
many  cases  the  needs  of  a  locality,  which  may  be  a 
portion  of  one  town  or  may  lie  in  two  towns,  demand  a 
different  form  of  government  from  that  offered  in  the 
ordinary  town  organization,  while  at  the  same  time 
they  do  not  demand  so  compact  an  organization  as  that 
to  be  found  in  a  city.  For  the  purpose  of  satisfying 
these  demands  the  village  or  borough  organization  has 
been  provided.  In  New  England,  where  the  people 
have  been  able  to  satisfy  the  demands  made  by  thickly 
populated  districts  through  the  ordinary  instrumentali- 
ties of  the  town,  this  embryonic  municipal  organization 
is  said  to  be  comparatively  rare,  though  it  is  still  to  be 

*  See  Allinson  and  Penrose,  op.  cit.,  297  ;  Bryce,  op.  cit.,  II.,  360,  note  2. 

*  Thus  in  Baltimore  the  members  of  the  council  must  be  assessed  for  at  least 
$300.  They  must  further  be  residents  of  the  city  for  at  least  three  years,  and 
must  be  citizens  of  the  United  States.  This  last  is  so  in  Brooklyn  also,  N,  Y. 
L.  1888,  c.  583,  title  II.,  3.  Those  of  the  smaller  branch  of  the  Baltimore  coun- 
cil must  be  assessed  at  $500,  be  resident  for  four  years,  and  be  twenty-five 
years  of  age.  Similar  qualifications  are  required  of  the  mayor.  Allinson  and 
Penrose,  op.  cit.,  329.  In  St.  Louis  every  member  of  the  council  must  be  thirty 
years  of  age,  a  citizen  of  the  commonwealth  for  five  years,  and  a  resident  and 
freeholder  in  the  city  for  one  year.     J.  H.  U.  S.,  V.,  157. 


MUNICIPAL  ORGANIZATION.  219 

found,  as  e,  g.  in  Connecticut  and  Vermont,  which  have 
probably  been  influenced  by  their  nearness  to  New 
York.  But  in  the  middle  commonwealths,  and  in  the 
west  and  northwest,  the  village  or  borough  organi- 
zation is  very  common,  so  common  indeed  as  very 
seriously  to  encroach  upon  the  sphere  of  town  govern- 
ment. For  in  almost  all  cases  where  the  social  condi- 
tions are  such  as  to  permit  the  adoption  of  the  village 
organization  {i.  e.,  where  a  comparatively  large  number 
of  people  live  within  a  small  area)  we  find  that  it  is  as 
a  matter  of  fact  adopted.  Thus  in  New  York  the  gen- 
eral law  for  the  incorporation  of  villages  provides  that 
the  village  organization  may  be  adopted  where  three 
hundred  resident  inhabitants  are  to  found  in  a  district 
of  less  than  one  square  mile  in  extent.^  The  main  dif- 
ference between  the  town  and  the  village  is  that,  while 
the  town  is  governed  by  the  town  meeting,  i.  e.  the 
meeting  of  the  political  people  of  the  town,  the  vil- 
lage is  governed  by  a  select  body,  to  wit,  the  board  of 
trustees  or  burgesses.  Further,  while  the  town  is  a 
quasi  municipal  corporation,  the  village  or  borough  is 
a  municipal  corporation  proper,^  since  it  is  formed 
primarily  for  the  satisfaction  of  local  needs.  But,  like 
the  city,  the  village,  though  formed  primarily  for  local 
needs,  may  be  made  use  of  by  the  commonwealth  for 
the  purposes  of  general  administration.  On  the  other 
hand,  the  village  may  practically  be  distinguished  from 
the  city  from  the  fact  that,  on  account  of  its  small  size, 
it  is  seldom  as  a  matter  of  fact  made  an  agent  of  general 
administration.  About  the  only  branch  of  general 
administration  which  is  entrusted  to  the  village  is  the 
preservation  of  the  peace. 

^  See  N.  Y.  L.  1870,  c.  291,  sec.  i.  '  Dillon,  op.  cit.,  I.,  45. 


220  LOCAL  ADMINISTRATION. 

2.  The  milage  organization, — The  organization  pro- 
vided by  the  New  York  law  for  the  incorporation  of 
villages,  to  which  reference  has  already  been  made, 
may  be  taken  as  an  example  of  the  village  organization 
in  the  United  States. 

By  this  the  village  authority  is  a  board  of  three  or 
more  trustees  and  a  president  who  is  a  member  of  the 
board.  By  the  side  of  the  trustees  are  a  treasurer,  a 
clerk,  a  collector,  and  a  street  commissioner.  The  trus- 
tees, the  president,  the  treasurer,  and  the  collector  are 
elected  by  the  electors  in  the  village.  The  trustees 
serve  for  two  years,  one  half  or  the  major  part  of  the 
number  retiring  each  year,  while  the  other  elected  offi- 
cers serve  for  one  year.  Residence  in  the  village  is  a 
necessary  qualification  of  eligibility  for  all  offices,  and 
the  ownership  of  property  to  be  assessed  for  the  taxes 
made  necessary  by  the  expenditures  of  the  village,  is 
an  additional  qualification  for  the  positions  of  president 
and  trustee.  The  other  officers  are  to  be  appointed 
annually  by  the  board  of  trustees,  who  may  also  ap- 
point fire  and  police  officers  and  a  sealer  of  weights 
and  measures.  None  of  the  offices  is  obligatory ;  and 
the  offices  of  president  and  trustee  are  unpaid. 

The  board  of  trustees  has  large  powers  relative  to 
the  official  service  of  the  village,  having  the  powers  to 
remove  for  misconduct  and  after  a  hearing,  any  officer 
whom  they  appoint  (the  shortness  of  the  term  of  office 
makes  a  larger  disciplinary  power  unnecessary),  and, 
by  regulation,  to  fix  the  powers  and  duties  of  all  the 
village  officers  so  far  as  this  has  not  been  done  by  the 
law,  which  is  the  case  for  the  offices  of  president  and 
treasurer  and  one  or  two  others.  Most  of  their  other 
powers  are    economical   in   character   relating  to  the 


MUNICIPAL  ORGANIZATION,  221 

finances  and  local  services  of  the  village.  They  have 
the  care  of  the  village  property,  make  contracts  for  the 
village,  and  audit  all  claims  against  it.  In  their  man- 
agement of  the  finances  they  are  subjected  to  a  popular 
control.  For  this  purpose  the  expenditures  of  the 
village  are  divided  into  ordinary  and  extraordinary  ex- 
penditures, the  latter  consisting  generally  of  all  expen- 
ditures of  over  $500  for  any  one  specific  object.  The 
estimates  for  ordinary  expenditures  for  the  ensuing 
year  are  to  be  presented  to  the  people  at  the  annual 
election,  who  may  then  judge  of  the  wisdom  of  the 
trustees'  action  before  casting  their  votes,  though  they 
take  no  direct  action  upon  the  estimates.  The  extraor- 
dinary expenditures  must,  however,  be  voted  by  those 
electors  who  are  liable  to  be  assessed  for  the  tax  to  de- 
fray them  in  their  own  right  or  in  that  of  their  wives. 
To  pay  the  expenses  of  the  village  administration  power 
is  given  to  the  trustees  to  levy  a  general  property  tax 
in  about  the  usual  way,  and  a  poll  tax  of  $1  on  each 
male  inhabitant  between  the  ages  of  twenty-one  and 
sixty  years.  No  debts  of  a  permanent  character  may 
be  contracted  with  the  exception  that  debts  of  not 
more  than  ten  j^er  cent  of  the  assessed  value  of  taxable 
property  in  the  village,  may  be  incurred  for  the  purpose 
of  supplying  the  village  with  water.^  The  power  to 
borrow  money  is,  however,  often  granted  by  special 
and  local  legislation.  Besides  these  powers  of  a  finan- 
cial character  the  trustees  have  quite  an  extensive  power 
to  issue  local  police  ordinances  which  they  may  sanction 
with  a  penalty  not  exceeding  $100  ;  have  care  of  the 
public  health  and  have  the  ordinary  powers  of  the 
town  highway  commissioners  for  the  village  district 

»  N.  Y.  L.  1875,  c.  181. 


222  LOCAL  ADMLNLSTRATION. 

which  is  taken  out  of  the  jurisdiction  of  the  town  high- 
way  commissioners.  A  later  law  ^  allows  the  trustees 
to  provide  for  the  election  by  the  people  in  the  larger 
villages  of  police  justices  with  the  same  criminal  juris- 
diction, as  that  possessed  by  the  town  justices  of  the 
peace  who  are  not  to  have  jurisdiction  within  the  vil- 
lage district.  These  police  justices  have  also  jurisdic- 
tion over  violations  of  village  ordinances,  and  in  case 
of  the  non-payment  of  the  penalty,  which  is  to  be  sued 
for  in  an  action  for  debt,  may  commit  the  violator  to 
the  county  jail. 

»  N.  Y.  L.  1875,  c.  514. 


CHAPTER  IV. 

GENERAL    CHARACTERISTICS     OF     LOCAL     ADMINISTRATION 
IN   THE   UNITED    STATES. 

/. — Statutory  enumeration  of  powers. 

One  of  the  most  noticeable  characteristics  of  the 
system  of  local  administration  in  the  United  States  is 
to  be  found  in  the  fact  that  all  matters  relative  to  the 
organization  of  the  local  administrative  system,  all  the 
powers  of  the  various  local  districts  considered  as 
municipal  corporations,  and  the  duties  of  the  officers 
acting  within  these  districts  are  fixed  in  their  most 
minute  details  by  statute.*  As  no  administration  can 
long  be  carried  on  on  the  same  general  rules,  and  as 
the  needs  of  different  districts  differ  very  much  one 
from  the  other,  it  is  necessary  to  give  to  some  authority 
the  power  to  change  in  its  details  the  general  plan  of 
administration  so  as  to  suit  changed  conditions  and 
varying  needs.  But  as  these  minute  details  have  been 
fixed  by  statute  they  can  be  changed  only  by  statute. 
Therefore,  the  statute-making  authority  is  being  called 
upon  all  the  time  to  act,  in  order  that  the  administra- 
tion of  local  affairs  may  be  carried  on  to  advantage. 
The  general  system  is  continually  suffering  modifica- 
tions, and  the  various  districts  have,  as  a  result  of  the 
intervention  of  the  legislature,  quite  different  powers. 

'  Cf.  Dillon,  op.  cit.,  I.,  145. 
223 


224  LOCAL  ADMINLSTRATION. 

Being  accustomed  to  this  continual  interference  by 
means  of  special  and  local  legislation  in  the  affairs  of 
the  localities,  the  legislature  comes  to  think  that  these 
local  affairs  may  best  be  regulated  from  the  centre  of 
the  commonwealth,  and  often  acts  where  it  has  not 
been  asked  to  act  by  the  local  authorities  or  by  the 
inhabitants  of  the  localities.  It  often  imposes  burdens 
upon  the  localities  which  are  unwise,  and  not  in- 
frequently allows  itself  to  be  made  use  of  by  unscru- 
pulous persons  or  some  political  clique  to  forward  their 
interests  at  the  expense  of  the  true  interests  of  the 
locality  directly  concerned/  How  far  this  habit  of 
special  and  local  legislation  is  carried  is  seen  on  exam- 
ining the  session  laws  of  New  York  for  the  year  1886, 
a  year  which  has  been  chosen  simply  at  random.  Of 
the  681  acts  passed  that  year  by  the  legislature,  280, 
L  e.  between  one  third  and  one  half  of  the  entire  work 
of  the  legislature,  interfered  directly  with  the  affairs 
of  some  particular  county,  city,  village,  or  town  which 
was  mentioned  by  name  in  the  act.  The  results  of 
this  custom  of  special  and  local  legislation  are : 

1.  The  centralization  of  local  matters  in  the 
hands  of  an  irresponsible  central  authority. — So  few 
matters  relating  to  the  localities  are  fixed  by  the  con- 
stitution that  the  power  of  the  legislature  over  the 
localities  is  supreme.  Almost  the  only  thing  which 
the  legislature  cannot  do  is  to  take  away  from  the 
localities  their  privilege  of  electing  their  own  officers. 
This  is  provided  for  in  the  constitutions  of  several  of 
the  commonwealths  and  is  therefore  beyond  the  power 

'  President  Seth  Low  says  in  his  chapter  on  Municipal  Government  contained 
in  Bryce,  American  Commonwealth,  I.,  630,  that  in  the  commonwealth  of  New 
York  "the  habit  of  interference  in  city  action  has  become  to  the  legislature 
almost  a  second  nature." 


GENERAL   CHARACTERISTICS.  225 

of  the  legislature/  The  force  of  such  provisions  is 
often,  however,  destroyed  by  the  interpretation  put 
upon  them  by  the  courts.  Thus  in  New  York  the 
<;ourt  of  appeals  decided  in  the  case  of  People  v, 
Drwpei'  ^  that  the  appointment  of  police  commissioners 
by  the  governor  and  senate  in  accordance  with  a 
statute  of  the  legislature  was  not  in  conflict  with  the 
constitution,  because  such  officers  were  not  local  but 
commonwealth  officers.^  The  same  court  held  later* 
that  fire  and  health  officers  might  also  be  appointed  by 
the  governor  because  these  officers  were  not  only 
public  commonwealth  officers,  but  were  also  new 
officers,  i.  e,  were  not  in  existence  at  the  time  of  the 
adoption  of  the  constitution,  and  were  therefore  not 
subject  to  its  provisions.  This  distinction  between  old 
and  new  officers  first  made  in  these  cases  was  carried  to 
the  bounds  of  the  absurd  in  the  case  of  Astor  v.  The 
Maym^^  which  permitted  the  transfer  of  old  functions, 
performed  by  old  municipal  officers,  to  new  officers 
who  might  constitutionally  be  regarded  as  public  and 
not  local  officers,  and  might  be  appointed  by  the  gov- 
ernor. The  result  of  this  line  of  decisions  has  been  to 
deprive  the  cities  of  New  York,  and  particularly  the 
city  of  New  York,  of  the  right  of  local  self -ad  ministra- 
tion which,  it  was  supposed,  was  guaranteed  by  the 
constitution  of  the  commonwealth.  Thus  at  one  time 
there  was  to  be  seen  in  the  city  of  New  York,  attend- 

*  E.  g.  see  constitution  of  New  York,  art.  10,  sec.  2.    Cf.  Dillon,  op.  cit., 
I.,  100. 

^  15  N.  Y.,  532. 

^  See  supra,  p.  204  for  other  decisions  of  a  similar  tenor. 

*  People  V.  Pinckney,  32  N.  Y.,  377,  and  Metropolitan  Board  of  Health  v. 

Heister,  37  N.  Y.,  661. 

5  62  N.  Y.,  567. 
IS 


226  LOCAL  ADMLNISTRATION. 

ing  to  a  work  whicli  has  been  held  by  the  highest 
court  of  the  commonwealth  to  be  a  purely  munici- 
pal undertaking/  viz.  the  aqueduct,  a  commission 
whose  members  were  for  the  most  part  appointed  by 
the  central  government  of  the  commonwealth  and  not 
by  the  authorities  of  the  city  which  alone  is  inter- 
ested.^ On  this  commission  provision  was  made  ^  for 
only  one  representative  of  the  city  which  was  paying 
for  the  work,  and  which  was  primarily  if  not  alone  in- 
terested therein,  to  wit,  the  municipal  commissioner  of 
public  works.  This  same  legislative  interference  in 
municipal  matters  has  been  characteristic  of  the  action 
of  the  legislature  with  regard  to  the  providing  of 
means  of  rapid  transit  for  the  city.  The  court  of  ap- 
peals in  one  of  its  decisions  gives  evidence  of  its  belief  in 
the  dangers  resulting  from  this  line  of  decisions.  This 
is  the  case  of  People  v.  Albertson,"^  where  it  distinctly 
says  that  the  purpose  of  article  10,  section  2,  of  the 
New  York  constitution  was  to  secure  the  right  of  local 
government  to  the  civil  divisions  of  the  commonwealth 
and  that  this  right  could  not  be  taken  away  from  them 
by  the  legislature.  But  the  majority  of  its  decisions 
would  seem  to  be  in  the  direction  of  permitting  the 
legislature  to  centralize  as  much  as  it  saw  fit  the  ad- 
ministration of  the  commonwealth.  That  these  deci- 
sions are  impolitic  and  unwise  no  one  will  deny.  That 
legally  they  were  in  some  cases  unnecessary  is  to  be 
seen  when  they  are  compared  with  the  decisions  of  the 
courts  of  other  commonwealths.      Thus  in  Michigan 

^  Bailey  v.  The  Mayor,  3  Hill,  531  ;    People  v.  Civil-Service  Boards,  103 
N.  Y.,  657. 

5  N.  Y.  L.  of  1883,  c.  490  ;  N.  Y.  L.  of  1886,  c.  337. 
«  N.  Y.  L.  1886,  c.  337. 
*  55  N.  Y.,  50. 


GENERAL   CHARACTERISTICS,  227 

and  Indiana  a  similar  constitutional  provision  has  been 
interpreted  as  preventing  the  legislature  from  granting 
to  the  governor  the  power  to  appoint  municipal  com- 
missioners of  public  works/  or  itself  to  appoint  park 
commissioners  and  force  the  city  to  provide  a  park.^ 

This  tendency  towards  a  legislative  centralization, 
which  is  to  be  seen  also  in  commonwealths  other  than 
New  York,  has  led  in  some  of  them  to  the  insertion  in 
the  constitution  of  provisions  which  aim  at  giving  the 
local  areas  a  greater  independence  of  the  legislature,  at 
fixing  by  the  law  in  the  constitution  of  many  matters 
of  local  administration,  or  at  assuring  to  the  localities 
the  right  to  regulate  within  the  law  their  own  affairs 
free  from  all  les^islative  interference.^ 

2.  Local  variations. — A  further  result  of  this  habit 
of  special  and  local  legislation  is  a  great  lack  of  uni- 
formity in  the  administrative  system  of  even  a  single 
commonwealth,  especially  in  a  commonwealth  like 
New  York,  where  the  constitutional  provisions  ensur- 
ing the  independence  of  the  local  corporations  are  of 
comparatively  little  importance.  Such  a  lack  of  uni- 
formity is  not  of  course  a  serious  defect ;  indeed  it  has 
the  advantage  of  not  sacrificing  local  interests  to  the 
fetish  of  uniformity  and  symmetry.  It  does  of  course 
add  very  greatly  to  the  difficulties  of  both  the  student 
and  the  practising  lawyer  since  search  for  special 
statutes  must  always  be  made  to  find  out  what  are  the 
actual  powers  of  any  particular  district,  it  being  unsafe 
to  place  much  dependence  on  general  statutes.     This 

*  People  V.  Hurlburt,  24  Mich.,  44  ;  Cf.  State  v.  Denny,  it8  Indiana,  449; 
Evansville  V.  State,  Ibid.,  426. 

'  People  V.  Detroit,  28  Mich.,  228. 

*  Cf.  Stimson,  American  Statute  Law^  pp.  94,  95. 


228  LOCAL  ADMINISTRATION, 

local  and  special  legislation  is  apt  to  result  in  conflict- 
ing legislation  also. 

3.  No  heal  independence. — The  possession  by  the 
legislature  of  this  right  of  control  over  the  affairs  of 
the  local  areas  and  the  readiness  which  the  legislature 
has  ever  shov^n  to  exercise  this  right  have  brought  it 
about  finally,  that  it  is  almost  impossible  to  distinguish 
the  sphere  of  central  from  the  sphere  of  local  action. 
The  office!*^  acting  in  the  local  areas  and  elected  by 
the  people  of  the  localities  are  for  the  most  part,  not- 
withstanding the  juristic  personality  which  has  been 
recognized  as  belonging  to  the  localities,  mere  agents 
of  the  central  administration  of  the  commonwealth, 
and  the  entire  administrative  system  in  the  localities 
may  be  changed  at  will  by  the  legislature.^ 

//. — Administrative  independence  of  the  local  authorities. 

1.  Absence  of  central  administ/rative  control. — The 
second  general  characteristic  of  the  American  system 
of  local  administration  is  to  be  found  in  the  great  num- 
ber of  the  authorities  and  their  independence  both  of 
each  other  and  of  the  central  administration  of  the 
commonwealth.  The  great  number  of  the  authorities 
is  due  to  the  fact  that  the  administration  is  not  pro- 
fessional in  character.^  Their  independence  is  due  to 
the  decentralized  character  of  the  administrative'system 
adopted  in  the  commonwealths.  The  rule  is,  that, 
notwithstanding  most  of  the  authorities  in  the  local 
areas  attend  to  a  great  deal  of  work  which  interests  the 
commonwealth  as  a  whole,  they  shall  still  be  elected  by 
the  people  of  the  localities  in  which  they  act,  and  when 

^  Cf.  Lorillard  v.   Town  of  Monroe,  ii   N.  Y.,  392  ;  United  States  v.  the 
Baltimore  and  Ohio  R.  R.  Co.,  17  Wallace,  322. 
'  Infra,  II.,  p.  7. 


GENERAL   CHARACTERISTICS.  229 

elected  shall  act  free  from  almost  all  central  adminis- 
trative control.  Seldom  do  we  find  that  any  adminis- 
trative authority  has  the  power  to  direct  them  how 
they  shall  perform  their  duties  or  to  quash  or  amend 
their  action  or  to  exercise  any  disciplinary  power  over 
them.  In  a  few  instances,  however,  where  the  action 
of  the  authorities  in  the  localities  may  have  a  disas- 
trous effect  upon  the  general  administration  of  the 
commonwealth  in  matters  where  it  is  particularly  de- 
sirable that, the  administration  shall  be  conducted  in 
accordance  with  a  uniform  plan  and  where  local  action 
may  produce  inequalities  in  the  burden  of  common- 
wealth  taxation,  resort  has  been  had  to  a  central 
administrative  control  which,  however,  up  to  the  present 
time  has  not  been  thoroughly  worked  out.  Thus  in 
New  York  the  governor  has  disciplinary  powers  of  a 
limited  character  over  a  number  of  officers  acting  in  the 
localities  among  whom  may  be  mentioned  the  sheriff, 
the  district  attorney,  and  the  superintendent  of  the 
poor.^  The  county  treasurer  who  is  the  fiscal  agent 
both  of  the  county  and  of  the  commonwealth  was 
formerly  removable  in  the  same  way.  Such  powers 
seem,  however,  to  be  exceptional.  In  New  York  also 
in  the  sanitary  administration  the  state  board  of  health 
has  a  series  of  supervisory  powers  over  the  actions  of 
the  local  boards  of  health.^  In  the  administration  of 
public  education  the  commonwealth  superintendent  of 
public  instruction  has  similar  and  even  larger  powers 
of  administrative  supervision  over  everything  connected 
with  the  common  schools.^     Such  a  central  administra- 

'  Supra^  p.  79. 

*  Public  Health  Act  of  1885,  c.  270,  sees.  3,  5,  and  8. 

»  School  Law  of  1864,  Title  I.,  sec.  18  ;  Title  XII. 


230  LOCAL  ADMINLSTRATION. 

tive  control  in  educational  matters  seems  to  be  quite 
common.  Finally  in  the  tax  administration  provision 
is  often  made  for  the  equalization  of  assessment  valua- 
tions both  for  the  county  and  for  the  commonwealth,  in 
order  to  prevent  the  assessors  in  one  town  or  county 
from  assessing  the  property  subject  to  taxation  in  that 
town  or  county  at  such  a  low  rate  of  valuation  as  to 
throw  part  of  the  town's  share  of  commonwealth  or 
county  taxation  upon  the  other  towns/  But  these  in- 
stances of  the  administrative  control  are  quite  rare. 

2.  Decentralized  character  of  the  local  organizations. 
— Not  only  is  the  central  administrative  control  over 
the  actions  of  the  officers  in  the  localities  very  weak, 
but  the  administration  in  any  given  district  is  not  at 
all  concentrated.  Seldom  do  we  find  any  authority 
which  has  administrative  supervision  of  any  extent 
over  the  actions  of  the  other  authorities  in  the  locality. 
A  reference  to  the  powers  of  the  county  authority,  i.  e, 
the  supervisors  or  the  commissioners,  will  show  how 
few  are  their  powers  of  administrative  control.^  The 
only  possible  exception  to  this  general  independence  of 
the  local  authorities  from  the  other  local  authorities  is 
to  be  found  in  the  case  of  the  municipal  administration, 
where  the  organization  is  considerably  more  concen- 
trated. It  has  been  pointed  out  that  the  tendency  of 
modern  American  municipal  development  is  to  con- 
centrate the  municipal  administration  still  more  and 
to  increase  very  largely  the  powers  of  the  mayor.^  But 
as  a  general  thing  even  now  the  various  municipal 
officers  are  comparatively  independent  of  the  mayor, 

'  See  Cooley  on  Taxation^  2d  Ed.,  421-423,  747-749. 

2  Supra,  pp.  178-192. 

3  Supra,  p.  21 0. 


GENERAL   CHARACTERISTICS.  231 

though  they  are  somewhat  more  dependent  upon  the 
mayor  and  the  city  council  acting  together.  The  gen- 
eral characteristic  of  the  American  system  of  local  ad- 
ministration is  that  it  is  from  the  administrative  point 
of  view  extremely  decentralized.  The  administrative 
control,  both  central  and  local,  is  believed  to  be  un- 
necessary because  of  the  detailed  enumeration  in  the 
statutes  of  all  the  powers  of  the  local  corporations,  and 
of  the  officers  in  the  local  areas.  Everything  is  so  fully 
regulated  by  the  legislature  that  there  is  little  room 
left  for  administrative  instructions  to  be  sent  either  by 
the  central  authorities  of  the  commonwealth  or  any 
superior  local  authority.  In  order  to  ensure  that  offi- 
cers will  perform  the  duties  imposed  upon  them  by  the 
statutes  resort  has  been  had  to  the  sanctions  of  the 
criminal  law.  To  the  violation  of  almost  every  official 
duty  is  attached  a  criminal  penalty  which  is  to  be 
enforced  by  the  ordinary  criminal  courts.  Detailed 
enumeration  of  official  duties  in  the  statutes  and  pun- 
ishment of  the  violation  of  official  duties  by  the  criminal 
courts  are  thought  to  be  sufficient  to  ensure  efficient 
and  impartial  administration  and  to  obviate  the  neces- 
sity of  forming  any  strong  administrative  control.^ 

///. — Non-professional  character  of  the  system. 

The  third  general  characteristic  of  the  American 
system  of  local  administration,  as  indeed  of  the  entire 
American  system  of  administration,  is  to  be  found  in 
the  non-professional  character  of  the  officers.  We  find 
almost  no  professional  officers.  Almost  all  are  non- 
professional in  character.  That  is,  as  a  rule  the  of- 
ficers receive  no  salary  but  only  j^er  diem  allowances, 

'  Infra,  II.,  pp.  80,  88. 


232  LOCAL  ADMLNLSTRATION. 

which  are  seldom  greater  than  the  wages  received  by 
a  skilled  laborer,  serve  for  short  terms  of  office,  and, 
after  filling  their  term  of  office,  return  again  to  the 
ranks  of  society  from  which  they  came.  Having  no 
opportunity  to  develop  professional  habits  they  thus 
do  not  form  a  special  class  in  the  community.  The 
result  of  such  a  system  of  official  organization  is  that 
society  governs  itself,  whence  the  name  that  is  given 
to  the  system,  viz,,  that  of  self-government,  which 
means  a  system  of  government  and  administration  in 
which  society  governs  itself  through  the  organization 
of  the  state.  In  such  a  system  the  state  delegates  cer- 
tain specific  powers  to  officers  appointed  by  society 
in  its  local  organizations — officers  who  on  account  of 
the  shortness  of  their  terms  of  office  do  not  cease  to 
have  all  the  feelings  of  society.  The  only  exception  to 
this  rule  of  the  non-professional  character  of  the  offi- 
cers in  the  local  administrative  system  is  to  be  found  in 
the  cities,  where  the  necessities  of  municipal  adminis- 
tration seem  to  call  for  quite  a  number  of  professional 
officers,  who  are  generally  salaried  and  serve  for  longer 
terms. 

Service  as  officer  is  not  only  unpaid  but  it  is  often 
obligatory.  There  are  at  the  present  time  more  excep- 
tions to  this  rule  of  the  obligatory  character  of  the 
service  than  in  former  years,  and  indeed  the  obligation 
itself  seems  to  be  disappearing.  By  the  original  Eng- 
lish system,  however,  service  as  administrative  officer 
was  really  obligatory  in  almost  all  cases,  just  as  much 
as  service  on  a  jury  or  in  the  army,  but  at  the  present 
time  the  tendency  would  seem  to  be  towards  voluntary- 
ism. In  New  York  many  of  the  local  offices  were 
until  recently  obligatory,  refusal  to  serve  being  punish- 


GENERAL   CHARACTERISTICS.  233 

able  with  a  fine  of  $50.  This  was  true  of  most  of  the 
town  offices,  e,  g,  supervisor,  town  clerk,  assessor, 
commissioner  of  highways,  and  overseer  of  the  poor,^ 
but  the  obligation  to  serve  seems  to  have  been  omitted 
in  the  revision  of  the  law  made  in  ISQO.'^ 

^  See  New  York  Revised  Statutes,  Part  I.,  Chap.  XI., Title  III.,  art.  2d.,  sec- 
tions 25  and  26  ;  cf.  State  v.  Ferguson,  31  N.  J.  L.,  107. 
*  L.  1890,  c.  569. 

OF 


CHAPTER  V. 


/ 


LOCAL    ADMINISTRATION    IN   ENGLAND. 
/. — History  from  the  seventeenth  century  to  the  present  time, 

1.  Defects  of  the  old  system, — The  history  of  the 
English  system  of  local  administration  up  to  the  begin- 
ning of  the  seventeenth  century  has  already  been 
traced/  It  has  been  shown  how  the  original  prefecto- 
ral  administration  of  the  sheriffs  was  gradually  re- 
placed by  the  administration  of  the  justices  of  the 
peace,  who  practically  had  within  their  hands  the  entire 
control  of  administrative  matters  in  the  localities  and 
from  whom  were  recruited  to  a  large  extent  the  mem- 
bers of  Parliament.  This  system,  it  has  been  pointed 
out,  was  really  one  of  great  local  self-government.  It 
was  not,  however,  in  the  modern  sense  representative 
in  character;  and  when,  in  1830,  its  financial  side  be- 
came more  important  on  account  of  the  great  increase 
in  the^  amount  of  local  taxes  through  the  increase  of 
the  poor-rates,  it  was  thought  that  some  voice  as  to  the 
amount  of  these  local  taxes  should  be  given  to  the  tax- 
payers. The  change  in  feeling  was  due  in  large  part 
also  to  social  changes.  The  application  of  steam  power 
to  manufactures  and  the  very  general  introduction  of 
machinery  revolutionized  industrial  methods,  massed 

^  '  Supra,  pp.  162-165. 

234 


LOCAL  ADMINISTRATION  IN  ENGLAND.     235 

large  populations  in  the  cities,  and  gave  to  the  posses- 
sors of  personal  property,  that  is  the  commercial  and 
industrial  classes,  an  importance  they  never  had  before. 
This  change  in  the  relative  importance  and  power  of 
the  property-owning  classes  led  first  to  a  change  in 
the  representation  in  Parliament — a  change  which  was 
brought  about  by  the  celebrated  reform  bill  of  1832. 
By  this  act  the  balance  of  political  power  was  taken 
away  from  the  nobility  and  gentry  and  given  to  the 
middle  classes.  '  As  the  system  of  local  administration 
of  that  time  gave  most  of  the  power  in  the  localities  to 
the  nobility  and  the  gentry,  it  was  only  natural  that 
the  new  political  masters  should  seek  to  discover  and 
adopt  some  plan  of  administering  local  affairs  by 
means  of  which  their  local  influence  might  be  in. 
creased. 

Another  reason  for  the  change  which  soon  followed 
was  the  necessity  of  wide-reaching  reforms.  The  de- 
ploi'able  condition  of  the  municipal  administration  has 
already  been  alluded  to.'  The  power  exercised  at  first 
by  the  Crown  and  later  by  the  nobility  over  the  munici- 
pal elections,  in  order  thereby  to  control  the  represen- 
tation in  Parliament,  had  been  used  in  such  a  way  that 
the  municipal  organization  and  institutions  were  utterly 
incapable  of  any  sort  of  even  passable  administration. 
Further  the  poor-rates  had  increased  to  such  an  enor- 
mous sum  in  the  years  immediately  preceding  1832 
and  the  anxiety  of  the  local  authorities  everywhere  to 
throw  the  burden  of  supporting  the  poor  on  some 
other  locality  than  their  own  had  led  to  a  complicated 
law  of  settlement  which  was  totally  at  variance  witli 
the  needs  of  an   advancing   industrial    society.     But 

*  Supra,  p.  ig8. 


236  LOCAL  ADMLNISTRATION. 

the  necessary  reforms  could  only  be  realized  by 
the  establishment  of  a  uniform  system  of  administra- 
tion. This  implied  a  centi-al  control  such  as  had 
not  before  existed.  In  theory  the  justices  of  the 
peace  were  subject  to  the  guidance  of  the  central 
government,  and  the  central  government  could  in 
theory  dismiss  them  from  office  if  they  disobeyed 
its  instructions.  But  the  high  social  and  political 
position  of  the  justices  made  it  a  delicate  matter  for 
the  central  government  to  send  instructions  to  them ; 
and  even  if  such  instructions  were  sent  it  was  extreme- 
ly difficult  to  enforce  them.  The  threat  of  dismissal 
from  office  had  no  terrors  for  the  average  justice  of  the 
peace.  Dismissal  meant  relief  from  arduous  service, 
and  involved  no  pecuniary  loss,  since  the  justices 
received  no  pay.  Hence  the  dismissal  of  a  justice  of 
the  peace  is  rarely  met  with  in  later  English  history ; 
and  the  power  to  send  the  justices  instructions  became 
finally  an  empty  prerogative.^ 

2.  The  reforms  of  1834  and  1835.— For  these 
reasons  some  of  the  first  resolutions  passed  by  the  new 
Parliament,  formed  as  a  result  of  the  reform  bill,  pro- 
vided for  a  thorough  investigation  of  the  administra- 
tion of  the  poor-law  and  of  municipal  government.  In 
1833  the  celebrated  poor-law  commission  was  appointed 
and  began  its  work.  The  result  of  this  work  was 
published  in  1834, and  has  been  described  as  "perhaps 
the  most  remarkable  and  startling  document  to  be 
found  in  the  whole  range  of  English,  perhaps,  indeed, 

*  The  last  attempt  to  coerce  justices  of  the  peace  through  the  power  of  dis- 
missal from  office  was  made  in  the  reign  of  William  III  by  Lord  Somers  and 
created  such  a  storm  that  no  subsequent  ministry  has  dared  to  repeat  it.  Gneist, 
Das  Englische  Verwaliungsrecht,  1884,  p.  389. 


LOCAL  ADMINISTRATION  IN  ENGLAND,     237 

of  all,  social  history."  ^  The  plans  of  reform  advocated 
in  this  report  and  finally  adopted  in  the  Poor-Law 
Amendment  Act  of  1834  involved  the  formation  of  a 
system  of  local  administration  which  should  be  represen- 
tative of  the  local  tax-payers,  and  at  the  same  time  sub- 
ject to  central  administrative  control.  The  parishes  on 
which  had  been  devolved  the  burden  of  supporting  the 
poor  under  the  old  system  were  grouped  into  unions. 
In  each  union  there  was  formed  a  board  of  poor-law 
guardians,  to  be  elected  by  the  inhabitants  of  the 
union.  Service  as  guardian  was  not  obligatory  as  had 
been  service  in  most  of  the  positions  under  the  old 
system.  This  board  confined  itself  practically  to  de- 
ciding the  amount  of  money  to  be  spent  while  the 
actual  detailed  administrative  work,  formerly  attended 
to  by  the  unpaid  overseers  of  the  poor  and  the  justices 
of  the  peace,  was  now  to  be  attended  to  by  salaried 
subordinates  devoting  their  whole  time  to  the  work. 
That  is  the  actual  poor-relief  was  to  be  distributed 
mainly  by  a  salaried  relieving  officer.  This  board  and 
all  its  officers  were  subject  to  a  most  strict  central  ad- 
ministrative control  exercised  by  the  central  poor-law 
board  at  London.  There  were  several  reasons  for  the 
introduction  of  this  control.  In  the  first  place  it  was 
felt  that  some  method  must  be  devised  to  restrain  the 
local  selfishness  which  had  been  one  of  the  greatest 
evils  of  the  old  system.  If  under  the  new  system  a 
locality  showed  a  desire  to  escape  any  of  the  burdens 
that  were  imposed  upon  it  by  the  law,  the  central  con- 
trol could  hold  it  up  to  the  performance  of  its  duties. 
In  the  second  place  the  new  system  did  not  offer  the 
same  guaranties  as  the  old  for  the  integrity  and  intel- 

'  Fowle,   The  Poor-Law,  1881,  p.  75. 


238  LOCAL   ADMINISTRATION, 

ligence  of  its  officers.  Under  the  old  system  as  a  rule, 
the  justices  of  the  peace — the  most  prominent  men  in 
the  county — either  did  the  work  themselves,  or  had  it 
done  under  their  personal  direction ;  under  the  new 
system  the  detailed  administrative  work  was  to  be 
attended  to  by  salaried  subordinates  of  the  boards  of 
guardians.  A  central  control  was  necessary  finally  be- 
cause of  the  necessity  of  uniform  administration. 

As  the  needs  of  English  society  have  increased,  new 
administrative  agencies  have  been  demanded  and  de- 
vised for  their  satisfaction  ;  and  these  new  agencies 
have  been  organized  on  the  same  lines  as  the  organs 
for  the  poor-law  administration.  Finally  the  county 
has  been  reorganized  on  somewhat  the  same  plan.  At 
about  the  same  time  that  the  poor-law  administration 
was  being  investigated  the  municipal  administration 
also  was  being  studied  with  the  purpose  of  devising 
some  plan  of  reform  which  should  do  away  with  exist- 
ing defects  and  make  the  municipal  organization  an 
efficient  instrument  for  municipal  administration.  The 
result  of  the  report  of  the  commission  appointed  for 
this  purpose  was  the  Municipal  Corporations  Act  of 
1835,  which  introduced  a  uniform  law  for  the  organiza- 
tion of  the  municipal  corporations  of  the  kingdom  and 
abolished  most  of  the  abuses  of  the  previously  existing 
charters.  The  form  of  organization  adopted  for  the 
municipal  boroughs  has  since  been  adopted  for  the 
county  organization  by  the  Local-Government  Act  of 
1888. 

As  a  result  of  these  changes  the  justices  of  the 
peace  have  lost  much  of  their  importance.  Most  of 
their  administrative  functions  have  been  taken  from 
them,    and    given   to    special    administrative    officers 


LOCAL  ADMINISTRATION  IN  ENGLAND.     239 

established  by  the  reform  legislation.  They  have, 
however,  retained  most  of  their  judicial  functions, which 
have  really,  somewhat  as  in  the  United  States,  been 
increased. 

3.  Present  position  of  the  justices  of  the  peace, — The 
long-continued  failure  of  the  English  law  to  make  any 
clear  distinction  between  justice  and  administration 
has  brought  it  about  that,  notwithstanding  the  recent 
attempts  to  separate  these  two  classes  of  functions,  the 
justices  of  the  peace  still  liave  under  the  present  sys- 
tem, as  indeed  they  also  have  in  the  United  States,  a 
series  of  duties  which  are,  from  the  continental  point  of 
view  at  any  rate,  administrative  in  character.*  They 
are  thus  still  conservators  of  the  peace  and  as  such  have 
the  right  to  bind  over  all  disorderly  persons  to  keep 
the  peace.  They  act  as  the  preliminary  investigators 
of  all  crimes,  even  of  felonies.  Acting  either  singly  or 
in  petty  or  special  sessions  they  convict  of  petty 
offences,  commonly  without  a  jury.^  In  the  courts  of 
quarter  sessions,  when  all  the  justices  of  the  peace  of 
the  county  meet  together,  they  form  when  acting  with 
a  jury  the  lowest  criminal  court,  and  without  a  jury  an 
administrative  court  of  appeal  from  the  orders  and 
convictions  of  the  justices  acting  singly  or  in  petty  and 
special  sessions.^  Certain  of  these  functions  have  at  the 
same  time  the  characteristics  of  judicial  and  administra- 
tive action,  that  is  the  matters  dealt  with  are  frequently 
administrative  in  character,  while  it  may  be  impossible 
to  distinguish  them  in  form  from  judicial  acts.     For 

'  Cf.  Wigram,  The  Justices'  Note-Book,  Chap.  I.  ;  Anson,  op.  cit.,  II.,  237. 
'  Stone,  Practice  of  Justices  of  the  Peace  at  Petty  and  Special  Sessions,  gth 
edition,  Part  I. 

'  Smith,  Practice  at  Quarter  Sessions  1882,  p.  4  ;  infra,  II.,  p.  214. 


240  LOCAL  ADMINISTRATION. 

English  administrative  law  is  highly  specialized  ;  its 
rules  are  put  into  the  form  of  direct  commands  to  the 
people  to  do  or  not  to  do  particular  things.  These 
commands  are  sanctioned  by  criminal  penalties,  and  the 
imposition  of  these  penalties  is  entrusted  to  the  justices 
of  the  peace  acting  as  police  judges.^  The  result  of  this 
specialization  of  the  English  law  has  been  an  enormous 
extension  of  the  police  powers  of  the  justices  of  the 
peace  even  under  the  present  system.  In  the  cities, 
however,  the  tendency  is  for  the  justices,  both  in  Eng- 
land and  in  the  United  States,  to  give  way  to  stipen- 
diary magistrates  and  salaried  recorders.^ 

Besides  these  cases  in  which  the  action  of  the  justices 
of  the  peace  is  judicial  in  form  but  often  administrative 
in  effect,  there  is  a  further  class  of  cases  in  which  their 
action  is  more  obviously  administrative.  Not  all  the 
laws  whose  execution  is  entrusted  to  the  justices  of  the 
peace  can  be  reduced  to  the  form  of  simple  commands 
addressed  to  the  people  at  large.  Certain  matters  have 
to  be  left  to  the  discretion  of  the  justices.  Thus  it 
has  been  left  to  them  to  decide  the  questions  of  law 
and  fact  that  arise  in  connection  with  removals  under 
the  poor  and  sanitary  legislation,  the  assessment  of  local 
taxes,  etc.^  etc.  In  these  cases  the  justices  act  other- 
wise than  in  the  foregoing  cases.  Their  decision  takes 
on  the  form,  not  of  the  conviction  of  a  violation  of  the 
law  accompanied  by  the  imposition  of  the  proper 
penalty,  but  rather  of  an  order  commanding  that  what 
is  proper  be  done.  Here  it  will  be  seen  that  the  justice 
acts  as  an  administrative  rather  than  as  a  judicial  officer. 

^  For  further  explanation  see  infra,  II,,  p.  107. 

'  Wigram,  op.  cit.,  6  ;  Probyn,  Local  Government  and  Taxation  in  the  United 
Kingdom,  31,  32. 


LOCAL  ADMLNLSTRATLON  LN  ENGLAND.     241 

His  action  is  administrative  in  form  as  well  as  in  effect. 
He  does  not  decide  a  controversy  but  orders  something 
to  be  done  which  it  is  necessary  shall  be  done  in  order 
that  the  government  shall  be  carried  on/  This  is  largely 
true  of  the  United  States  also. 

Finally  the  justices  of  the  peace  have  in  their  courts 
of  special  and  petty  sessions  to  appoint  a  few  unim- 
portant officers  in  ^  the  localities,  e.  g,  the  overseers  of 
the  poor  not  ex-officio  overseers  and  the  unsalaried  con- 
stables ;  they  also  have  a  series  of  powers  relating  to 
the  various  branches  of  the  administration  of  internal 
affairs  attended  to  in  the  localities.  Thus  they  have 
even  now  considerable  power  relative  to  the  highways 
though  the  new  county  council  has  robbed  them  of  the 
most  important  of  this  class  of  powers.^  They  still 
revise  and  allow  the  list  of  persons  liable  to  serve  on 
the  juries.^  They  grant  licences  for  the  sale  of  liquor.* 
Finally  the  Local-Government  Act  of  1888  gives  the 
justices  a  large  power  over  the  administration  of  the 
police  force.5 

//. —  The  county, 

1.  Organization  of  the  county  council. — The  English 
Local-Government  Act  of  1888,  which  is  the  last  of  the 
series  of  acts  relating  to  the  present  system  of  local 
administration,  provides  that  in  each  of  the  adminis- 
trative counties  into  which  England  is  divided^  there 
shall  be  a  county  council  elected,  speaking  broadly,  by 
the  citizens  of  the  county  who  are  occupiers  of  land 

^  Stone,  op.  cii.  Part  II.;  cf.  infra,  II.,  p.  109. 
*See  25  and  26  Vict.,  c.  6i,  and  27  and  28  Vict.,  c.  loi. 
^9  Geo.  IV.,  c.  50. 

*g  Geo.  IV.,  c.  61  ;  35  and  36  Vict.,  c.  94. 

*  Infra,  p.  243.  •  Except  the  new  county  of  London, 

16 


242  LOCAL  ADMLNISTRATION. 

of  a  clear  yearly  value  of  ten  pounds  and  upwards,  or 
are  occupiers  of  buildings  of  any  value.^  This  county 
council  is  composed  of  councillors,  aldermen,  and  a 
chairman,  being  modelled  on  the  town  council  estab- 
lished by  the  Municipal  Corporations  Act  of  1835.^  All 
fit  persons  may  be  elected  county  councillors  who  are 
county  electors,  parliamentary  electors,  or  who  being 
non-residents  still  reside  within  fifteen  miles  of  the 
county,  and  are  occupiers  of  property  in  the  county  of 
a  certain  annual  value,  or  pay  a  certain  amount  in  rates 
for  the  support  of  the  poor.^  The  term  of  office  is 
three  years  and  all  the  county  councillors  retire  from 
office  at  the  same  time/  The  county  aldermen  are  one 
third  in  number  of  the  councillors.  Any  person  quali- 
fied to  be  county  councillor  may  be  county  alderman, 
but  the  practice  will  probably  be  the  same  as  it  has 
been  in  the  case  of  the  municipal  boroughs  that  only 
councillors  will  be  made  aldermen.  The  term  of  office 
of  county  alderman  is  six  years,  one  half  the  number 
of  the  aldermen  retiring  every  third  year.  The  alder- 
men are  elected  by  the  council.^ 

The  county  chairman,  who  in  the  county  takes  a 
position  similar  to  that  of  the  mayor  in  the  municipal 
borough,  is  elected  in  the  same  way  by  the'  county 
council  from  among  those  persons  qualified  to.  .be 
county  councillors,  but  if,  as  is  probable,  the  practice 
will  prevail  which  has  been  adopted  in  the  municipal 

^  51  Vict.,  c.  10  ;  Herbert  and  Jenkin,   The  Councillor's  Handbook,  2. 

^51  and  52  Vict.,  c.  41,  sec.  i. 

"  Property  of  an  annual  value  of  from  £^00  to  ;^i,ooo,  or  rates  of  from  ;i^i5 

to  ;^30. 

■*5i   and  52  Vict.,  c.  41,  sec.  2;    Stephen  and  Miller,  The  County  Council 
Compendium,  24,  with  authorities. 
*  51  and  52  Vict.,  c.  41,  sec.  75,  and  45  and  46  Vict.,  c.  50,  sec.  14. 


LOCAL  ADMINLSTRATLON  LN  ENGLAND.     243 

boroughs,  the  chairman  will  be  selected  from  among 
the  aldermen/  His  term  of  office  is  one  year  and  he 
is  ex-officio  justice  of  the  peace.^  The  chairman  is  the 
only  member  of  the  county  council  who  may  receive 
any  remuneration.^  His  remuneration  is  to  be  fixed 
by  the  county  council.  Service  as  member  of  the 
county  council  does  not  seem  to  be  obligatory.* 

2.  Powers  of  the  county  council. — The  powers  and 
duties  of  the  county  council  relate  first  to  the  official 
service  of  the  county  and  second  to  the  administrative 
services  of  the  county.  The  council  has  a  large  power 
over  the  organization  of  the  county  official  service, 
though  some  of  the  offices,  such  as  that  of  county 
treasurer,  are  provided  for  by  statute.  The  council 
also  appoints  most  of  the  officers  of  the  county,  may 
dismiss  them  from  office,  direct  them  how  to  act,  and 
fix  the  amount  of  their  salaries.  The  great  exception 
to  this  rule  is  to  be  found  in  the  administration  of  the 
police  force  of  the  county,  which  is  to  be  attended  to 
by  a  joint  committee  composed  of  an  equal  number  of 
members  of  the  council  designated  by  it,  and  of  an 
equal  number  of  justices  of  the  peace  appointed 
by  the  court  of  quarter  sessions.  The  powers 
of  the  council  relating  to  the  administrative  services 
attended  to  in  the  county  affect  in  the  first  place  the 
general  administration  of  the  kingdom,  i.  e.  are  central 
in  character.  A  series  of  acts  had  provided  that  cer- 
tain matters  of  general  concern  should  be  attended  to  in 
the  localities  by  various  local  authorities.     The  local- 

*  51  and  52  Vict.,  c.  41,  sec.  75  ;  45  and  46  Vict.,  c.  50,  sec.  15. 
'  51  and  52  Vict.,  c.  41,  sec.  2. 

'  51  and  52  Vict.,  c.  41,  sec.  75  ;  45  and  46  Vict.,  c.  50,  sec.  15. 
*5i  and  52  Vict.,  c.  41,  sec.  75,  sub.  sec.  16. 


244  LOCAL  ADMINISTRATION. 

government  act  has  very  generally  taken  away  from  the 
various  local  authorities  mentioned  in  these  acts  the 
power  to  act,  and  has  given  such  power  to  the  county 
council.  The  only  important  exception  to  this  rule  is 
that  all  municipal  boroughs  of  over  10,000  inhabitants 
have,  even  since  the  passage  of  the  local-government 
act,  the  same  powers  of  this  character  which  they  pos- 
sessed before.  The  result  of  this  arrangement  is  that, 
for  the  purpose  of  executing  these  acts  of  general  con- 
cern, the  local  authority  is  either  the  county  council  or 
the  town  council  of  a  municipal  borough  which  has 
more  than  10,000  inhabitants.^ 

In  the  second  place  the  county  council  is  the  author- 
ity to  attend  to  all  business  which  may  affect  the 
county  as  a  corporation.  As  such  county  authority  it 
has  the  power  to  issue  a  series  of  by-laws  or  ordi- 
nances of  a  police  character,  has  the  general  supervision 
of  all  highways  and  the  actual  administration  of  the 
main  roads,  and  finally  and  most  important  of  all,  has 
charge  of  the  county  financial  administration  with  the 
power  to  make  appropriations  for  certain  specified  ob- 
jects, to  levy  taxes,  to  acquire  property  and  to  borrow 
money  when  the  purpose  of  the  loan  is  justified  by  the 
law.  It  must,  however,  be  remembered  that  the  prin- 
ciple of  law  governing  the  powers  of  the  county  coun- 
cil is  the  same  as  that  adopted  for  the  powers  of  the 
county  authority  in  the  United  States,  viz.^  that  its 
powers  are  enumerated  in  the  acts  of  Parliament  and 
that  it  may  not  exercise  any  power  which  is  not  thus 
based  on  statute.  Parliament  has  not  granted  to  the 
county  council  the  general  power  to  attend  to  the  af- 
fairs of  the  county  as  it  sees  fit,  with  the  power  to 

*  For  a  list  of  these  matters  see  Herbert  and  Jenkin,  op.  cit.,  41  et  seq. 


LOCAL  ADMINISTRATION  IN  ENGLAND.     245 

establish  and  maintain  such  institutions  as  it  may  be- 
lieve are  of  advantage  to  the  county.  No  distinction 
is  made  between  general  and  local  matters,  but  the 
powers  of  the  county  council  in  either  of  these  spheres 
of  action  are  alike  enumerated  in  the  statutes. 

In  the  third  place  the  county  council  has  a  series  of 
powers  which  affect  mainly  the  actions  of  the  local 
authorities  and  districts  beneath  the  county.  It  has 
already  been  shown  that  the  general  tendency  of  Eng- 
lish development  during  this  century  has  been  in  the 
direction  of  an  administrative  centralization  by  the 
formation  of  a  strict  central  control  over  the  actions  of 
the  localities  and  local  officers.  The  result  in  1888 
was  that  the  acts  of  almost  all  the  local  authorities  in 
the  lesser  administrative  districts  were  directed  and 
controlled  by  the  central  authorities  at  London.  This 
centralization  was  deprecated  by  many  persons  and  was 
generally  felt  to  have  had  a  bad  influence.  Therefore 
the  Local-Government  Act  of  1888  provided  that  the 
local-government  board  at  London/  which  was  the 
most  important  central  supervisory  authority,  may  by 
provisional  order,  to  be  confirmed  by  Parliament,  trans- 
fer to  the  county  councils  all  powers  of  control  pos- 
sessed by  it  or  by  any  other  central  authority  over  the 
various  local  authorities.^  The  Local- Government  Act 
of  1888  also  gave  to  the  county  council  the  power  to 
adjust  local  boundaries  which  were  in  a  very  confused 
state. 

^  Formed  in  1871  out  of  the  union  of  the  poor-law  with  the  public  health 
board. 

^  The  probable  changes  that  will  be  made  as  a  result  of  the  exercise  of  this 
power  by  the  local-government  board  are  indicated  in  Stephen  and  Miller, 
The  County  Council  Compendium^  54.  For  the  county  generally  see  Anson, 
op,  cit.,  II.,  235-238. 


246  LOCAL  ADMINISTRATION. 

III. — Rural  subdivisions  of  counties. 
1.  Local  chaos. — Below  tlie  county  all  is  confusion. 
The  parish  was  at  one  time  the  only  rural  division  be- 
low the  county,  but  with  the  growth  of  new  needs 
there  have  been  formed  new  divisions,  and  in  these 
divisions  new  authorities,  for  the  satisfaction  of  these 
needs.  While  the  parish  has,  as  a  rule,  been  taken  as 
the  basis  of  these  new  divisions,  the  relation  of  the 
parish  to  the  county  has  from  the  beginning  been  so 
peculiar  that  the  new  divisions  at  the  present  time 
bear  little  territorial  relation  to  the  county.  The 
parish  in  the  first  place  was  not  always  contained  with- 
in one  unbroken  fence  line.  In  1873  there  were  in  one 
county  more  than  seventy  divided  parishes,  while  one 
parish  alone  had  ten  outlying  portions/  When  the 
union  was  formed  in  1834  it  was  formed  on  the  basis 
of  the  parish,  i.  e,  it  was  to  be  composed  of  a  certain 
number  of  parishes.  As  the  parishes  often  crossed 
county  lines,  the  necessary  result  is  that  the  union 
often  crosses  county  lines.^  The  rural  sanitary  district 
which  was  formed  about  1848  was,  as  a  rule,  to  be  the 
same  in  territorial  extent  as  the  union.  The  sanitary 
districts  were  classed  as  urban  and  rural  sanitary  dis- 
tricts. The  first  were  formed  out  of  the  second  as  the 
needs  of  the  inhabitants  demanded.  That  is,  any  aggre- 
gation of  inhabitants  might  be  formed  into  an  urban 
sanitary  district,  which  might  thus  embrace  parts  of 
two  unions  and  parts  of  several  parishes.  After  these 
urban  sanitary  districts  had  been  formed  all  that  was 
left  of  any  union  was  denominated  a  rural  sanitary  dis- 
trict. Then  the  rural  guardians  of  the  poor  were  organ- 

^  Chalmers,  Local  Government,  33. 

*  One  hundred  and  eighty  one  out  of  about  six  hundred  and  fifty  unions  do 
so.     Ibid.,  51. 


LOCAL  ADMLNISTRATLON  IN  ENGLAND.     247 

ized  as  the  rural  sanitary  authority  for  such  rural 
sanitary  district."  Later  came  the  education  act, 
which  formed  all  parishes  or  parts  of  parishes  which 
were  not  within  the  limits  of  any  municipal  borough 
(for  the  parish  ran  through  the  municipal  borough  as 
well  as  through  the^  county)  into  school  districts.  The 
municipal  boroughs  themselves  also  formed  school  dis- 
tricts. Besides  these  districts  there  are  highway  dis- 
tricts, which  may  be  either  parishes  or  combinations  of 
parishes  or  unions  or  municipal  boroughs,  burial  dis- 
tricts, and  watching  and  lighting  districts,  which,  since 
the  establishment  of  the  county  police,  are  simply  light- 
ing districts,  and  are  usually  the  same  as  the  rural 
parishes.  All  these  parishes  may  overlap,  with  the 
single  exception  that  the  poor-law  parish  forms  an 
integral  part  of  the  union.  On  account  of  the  non- 
coincidence  of  their  areas  it  has  been  impossible  to 
transfer  all  the  administrative  functions  which  are  dis- 
charged within  them  to  any  one  well  organized  author- 
ity, though  the  attempt  has  been  made,  as  has  been 
indicated,  to  consolidate  several  of  the  most  important 
of  these  functions  in  the  hands  of  the  boards  of  poor- 
law  guardians.  The  result  of  this  condition  of  things 
is,  in  the  words  of  Mr.  Wright,  that — 

the  inhabitant  of  a  rural  parish  lives  in  a  parish,  in  a  union, 
in  a  county,  and  probably  in  a  highway  district.  He  is  or  may  be 
governed  by  a  vestry,  by  a  school  board,  a  burial  board,  a  high- 
way board,  the  guardians  and  the  justices.  [Now  the  county  coun- 
cil must  be  added  to  this  formidable  list].  There  are  a  multitude 
of  minor  matters  in  respect  of  which  the  districts,  authorities,  and 
rates  are  or  may  be  additionally  multiplied  and  complicated  in  all 
the  above  cases.' 

'  Ibid.,  1 01. 

*  Wrighfs  Memorandum^  No.  i,  p.  33,  cited  in  Chalmers,  Local  Government^ 
21. 


248  LOCAL  ADMLNLSTRATLON. 

Nearly  every  one  of  these  authorities  has  the  power 
of  levying  taxes  and  very  often  each  one  has  its  own 
machinery  for  the  collection  of  taxes.  Mr.  Goschen 
said  in  one  of  his  speeches  that  he  ^'received  in  one 
year  87  demand  notes  on  an  aggregate  valuation  of 
about  £1100.  One  parish  alone,"  he  said,  "sent  me 
eight  rate  papers  for  an  aggregate  amount  of  12s.  4d."^ 
The  system  of  areas  and  authorities  has  become  simply 
a  chaos ;  "  a  chaos,"  in  the  words  of  Mr.  Goschen  again, 
"  as  regards  authorities,  a  chaos  as  regards  rates,  and  a 
worse  chaos  as  regards  areas." 

But  with  regard  to  this  chaos  we  may  lay  down  the 
following  general  principles  which,  it  is  hoped,  will 
give  an  adequate  idea  of  the  local  government  which 
England  possesses  at  the  present  time. 

2.  '^Tke  union. — By  the  act  of  1834,  the  poor-law 
parishes,  which  are  not,  however,  always  identical  with 
the  ecclesiastical  parishes,  though  they  generally  are, 
are  grouped  into  unions  for  the  support  of  the  poor. 
At  the  head  of  each  union  is  placed  a  board  of  guardi- 
ans, composed  partly  of  ex-officio  members,  partly  of 
members  elected  by  the  people  possessing  the  local 
suffrage  in  the  parishes.'  The  ex-offido  members  are 
the  justices  of  the  peace  residing  in  the  union.  It  is 
said,  however,  that  the  justices  of  the  peace  participate 
rarely  in  the  administration  of  the  affairs  of  the  union.* 
The  elected  members  of  the  board  come  from  the 
various  parishes  within  the  union.  Each  parish  at  the 
time  the  union  is  formed  is  allotted  a  certain  number 
of  elected  members  whose  number  is  .determined  largely 

*  Probyn,  Local  Government  and  Taxation  in  the  United  Kingdom ^  127. 
'  Gneist,  Self  government^  etc,,  727. 
'  Chalmers,  op.  cit,  55. 


LOCAL  ADMINISTRATLON  LN  ENGLAND.     249 

by  its  importance.  Such  elected  members  are  elected 
by  tlie  owners  of  property  and  rate-payers  in  the 
parish  according  to  a  system  of  plural  voting.  A  rata- 
ble value  of  less  than  £50  gives  one  vote ;  a  ratable 
value  of  £50  or  more^  and  less  than  £100,  gives  two 
votes,  and  so  on  up  to  a  ratable  value  of  £250  or 
over,  which  gives  six  votes.  A  voter  may  vote  both 
as  owner  and  occupier  with  the  result  that  one  person 
may  cast  twelve  votes  but  no  more.^  The  guardians 
appoint,  subject  to  the  approval  of  the  local-govern- 
ment board  at  London,  all  the  necessary  subordinate 
officers,  but  cannot  remove  them  from  office.^  This 
power  is  entrusted  to  the  local-government  board, 
which  thus  has  a  very  large  administrative  control 
over  the  administration  of  the  boards  of  guardians. 
While  the  boards  of  guardians  were  originally  estab- 
lished for  the  purpose  of  attending  to  the  administration 
of  the  poor-law,  since  the  time  of  their  establishment 
they  have  been  called  upon  to  attend  to  other  branches 
of  administration.  Thus  in  the  rural  sanitary  districts 
the  boards  of  guardians  are  the  sanitary  authorities, 
i,  e,  the  guardians  who  come  from  the  rural  portions  of 
the  union  act  as  the  sanitary  authoiity  for  that  part  of 
the  union  which  forms  a  rural  sanitary  district.  They 
also  in  many  cases  act  as  the  rural  highway  authority.^ 
The  parishes,  which  were  the  original  highway  districts, 
have  in  many  cases  been  grouped  into  larger  highway 
districts  and,  as  far  as  may  be,  the  highway  districts 
so  formed  have  been  coterminous  with  the  unions. 
Where  this  has  been  done  the  boards  of  guardians 

*  Gneist,  Selfgovernment,  etc.,  723. 
^  Ibid. ,  730  ;  Chalmers,  op.  cit. ,  54. 
'  Chalmers,  op.  cit.^  59,  109,  136. 


250  LOCAL  ADMINISTRATION. 

have  been  given  the  power  of  attending  to  the  high- 
ways. The  actual  detailed  work  of  administration 
connected  with  the  branches  which  have  been  put 
into  the  hands  of  the  guardians  is,  as  a  rule,  at- 
tended to  by  the  officers  appointed  by  them.  The 
boards  of  guardians  have  in  the  course  of  time 
become  almost  entirely  deliberative  bodies,  and  their 
main  function  is  to  raise  the  money  necessary  to  do  the 
work  which  has  been  devolved  upon  them.  The  sub- 
ordinate officers,  who  do  almost  all  the  detailed  work, 
are  largely  under  the  control  of  the  local-government 
board  at  London  and,  being  salaried,  form  quite  a  pro- 
fessional service,  which  presents  a  strong  contrast  to 
the  formerly  decentralized  non-professional  administra- 
tion of  the  justices  of  the  peace.^  The  funds  from 
which  the  expenses  of  the  administration  of  the  boards 
of  guardians  are  paid,  are  obtained  from  local  taxation 
— the  poor-,  sanitary,  and  highway  rates — which  falls 
upon  the  divisions  of  which  the  union  is  composed,  i.  e. 
the  parishes,  and  from  subsidies  granted  by  the  county 
council  from  taxes  which,  while  collected  by  the  cen- 
tral government,  are  paid  over  to  the  county  councils 
for  distribution  among  the  unions  and  other  local 
divisions  according  to  rules  laid  down  in  various 
statutes  and  on  receipt  of  the  certificate  of  the  central 
government  that  the  standard  of  efficiency  required  by 
the  central  government  has  been  maintained.^ 

3.  The  parish. — Below  the  union  is  the  parish.  This 
area,  owing  to  the  establishment  of  the  union,  has  lost 
much  of  its  importance.  At  the  present  time  it  is  little 
more  than  a  tax  and  election  district  for  the  purposes 

'  Gneist,  Self  government,  etc.,  731  et  seq. 
*  Local  Government  Act  of  1888. 


LOCAL  ADMINISTRATION  IN  ENGLAND.     251 

of  local  government.  As  a  municipal  corporation  it 
also  lias  the  power  to  put  in  operation  a  series  of  per- 
missive acts  which  have  peculiar  reference  to  the  well- 
being  of  its  own  inhabitants.  Such  are  for  example  the 
baths  and  wash-houses  acts,  the  burial  acts,  the  lighting 
and  watching  acts  which  affect  at  the  present  time  only 
the  lighting  of  the  parishes,  the  public  libraries  acts,  and 
the  public  improvement  acts.^  These  acts  when  adopted 
by  the  parishes  are  carried  out  and  executed  by  in- 
spectors and  boards  of  commissioners  appointed  by  the 
parishes.  The  general  organization  of  the  parishes  is 
as  follows.  The  deliberative  authority,  i,  e.  the  authority 
which  decides  as  to  the  adoption  of  these  acts  and  such 
other  matters  as  are  in  the  control  of  the  parish,  is  the 
vestry.  This  consists  of  the  rate-payers  of  the  parish 
in  vestry  assembled  or  of  a  select  vestry  which  is  sim- 
ply a  representative  body  of  the  rate-payers.  The  rate- 
payers, where  the  select  vestry  has  not  been  adopted, 
vote  in  somewhat  the  same  manner  as  in  the  case  of 
the  union  elections.  That  is  each  rate-payer  paying  on 
a  ratable  value  of  less  than  i650  has  one  vote,  on  one 
of  between  £50  and  £75  two  votes,  and  so  on  up  to 
£125,  so  that  one  man  have  as  many  as  six  votes,  but 
in  this  case  no  more  than  six  votes,  as  no  one  is  allowed 
to  vote  both  as  owner  and  occupier.^  In  each  parish 
there  are  further  two  overseers  of  the  poor  who  are 
appointed  by  the  justices  of  the  peace.^  In  parishes 
which  are  at  the  same  time  ecclesiastical  parishes  the 
two  churchwardens,  who  are  elected  by  the  vestry,  are 
eX'Officio  overseers  of  the  poor.*  The  main  duty  of  the 
overseers  of  the  poor  is  no  longer  the  administration  of 

^  Chalmers,  op.  cii.,  42  and  43  ;  Herbert  and  Jenkin,    The  Councillor^ s  Hand- 
book, 5.  "^  Chalmers,    op.  cit.,  42.  ^  J  bid.,  43.  *  Ibid. 


252  LOCAL  ADMLNISTRATION. 

the  poor-relief  which  has  gone  into  the  hands  of  the 
guardians  of  the  poor  and  their  subordinate  force.  The 
main  duty  of  the  overseers  of  the  poor  at  the  present 
time  is  the  collection  of  the  rates  which  are  to  be  paid 
by  the  rate-payers  of  the  parish  for  the  purpose  of  sup- 
porting the  various  branches  of  administration  whose 
expense  has  been  devolved  upon  the  parish ;  and  as 
most  of  the  rates  are  tacked  to  the  poor-rate  or  else  the 
expenses  of  the  administrative  branches  are  actually 
defrayed  out  of  the  poor-rate  the  overseers  of  the  poor 
are  really  the  local  tax  collectors.  In  certain  cases 
provision  is  made  for  paid  assistant  overseers  of  the 
poor  and  paid  collectors  of  rates.*  It  must  be  noted 
that  the  parish  organization  extends  through  the  urban 
as  well  as  the  rural  districts,  though  it  is  rather  more 
important  in  the  rural  than  in  the  urban  districts.^ 
Finally  the  rural  parishes  are  all  school  districts,^  and 
have,  where  there  are  any  public  schools  in  the  Ameri- 
can sense  of  the  word,  a  school  board  organized  on  some- 
what the  same  plan  as  the  board  of  guardians  but  with 
provision  for  minority  representation  in  order  to  make 
the  public  schools  more  satisfactory  to  the  various 
ecclesiastical  minorities  which  are  so  common  in  Eng- 
land.-*  There  is  a  bill  before  the  present  Parliament 
(1893)  whose  intention  is  to  give  to  the  parish  a  more 
representative  government  by  the  formation  of  an  elec- 
tive parish  council.  If  it  passes,  the  stronger  parish 
organization  resulting  from  it  will  undoubtedly  lead  to 
an  increase  of  the  functions  of  the  parish  and  to  a 
greater  simplicity  in  the  local-government  institutions. 

*  Ibid.,  43  and  44. 

^  Since  in  the  rural  districts  the  parish  more  frequently  puts  into  operation  the 
permissive  acts  to  which  allusion  has  been  made. 

^  Chalmers,  op.  cit.,  126.  *  IHd.^  127. 


LOCAL  ADMINISTRATION  IN  ENGLAND.     253 

This  bill  also  substitutes  district  councils  for  boards  of 
guardians,  and  abolishes  plural  voting.* 

IV. —  Urban  subdivisions  of  counties. 

The  municipalities  in  England  are  of  two  classes, 
viz,  the  boroughs  or  cities  and  the  urban  sanitary 
districts  or  improvement  act  districts.  The  larger 
boroughs  or  cities  are  exempted  for  almost  all  pur- 
poses of  administration  from  the  jurisdiction  of  the 
county  authority  and  form  counties  by  themselves  in 
which  the  municipal  authority  acts  as  the  county 
authority.^ 

1.  Tlie  municipal  horougJi, — The  old  borough 
organization  has  been  completely  remodelled  and  made 
uniform  for  the  entire  country  by  the  Municipal  Cor- 
porations Act  of  1835.  This  act  was  passed  after  a 
most  thorough  investigation  had  been  made  of  the 
conditions  of  municipal  boroughs  and  provided  a  form 
of  organization  which  was  imposed  upon  all  localities 
desiring  to  become  municipal  boroughs.  At  the  pres- 
ent time  the  Crown  may,  by  order  in  council  at  the 
request  of  the  voters  of  any  place,  confer  upon  them 
the  privileges  which  attach  to  the  municipal  organiza- 
tion. The  old  principle  remains  the  same,  that  is,  that 
the  borough  is  a  corporation  of  quite  limited  powers — 
powers  which  generally  relate  simply  to  local  affairs. 
The  borough  organization  is  hardly  ever  made  use  of 
by  the  central  administration  as  an  agency  for  the  pur- 
poses of  general  administration.  Thus  the  whole  care 
of  the  city  poor  remains  in  the  hands  of  the  guardians 
of  the  poor  and  is  not  attended  to  by  the  municipal 

1  Review  of  Remews,  May,  1893,  404. 

*  Local-Government  Act  of  1888,  sec.  31,  Third  Schedule. 


254  LOCAL  ADMINISTRATION. 

council.  The  same  is  true  of  the  school  administration. 
Where  there  are  any  public  schools  they  are  adminis- 
tered by  the  school  board,  which  is  elected  in  the  school 
district,  formed  by  the  municipal  borough,  in  the  same 
way  in  which  the  school  board  is  elected  in  the  rural 
parishes.  The  work  of  the  borough  organization  is 
therefore  confined  almost  altogether  to  the  administra- 
tion of  its  property  and  to  the  execution  of  the  various 
special  powers  which  Parliament  may  have  conferred 
upon  the  borough  as  the  result  of  either  special  acts  or 
of  general  acts  conferring  particular  powers  upon  all 
boroughs.  These  acts  cover  such  a  wide  field  that  the 
work  of  the  municipal  borough,  notwithstanding  that 
its  powers  are  enumerated  in  the  statutes,  is  very  large 
in  the  domain  of  purely  local  matters — larger  indeed 
than  that  of  American  municipal  corporations. 

The  law  of  1835  and  the  various  laws  which  have 
been  passed  since  that  year  relating  to  the  boroughs 
have  been,  for  the  most  part,  consolidated  in  the  Con« 
solidated  Municipal  Corporations  Act  of  1882,  which 
now  governs  the  relations  of  the  municipal  boroughs. 
This  act  of  1882  simply  continues  the  form  of  organi- 
zation adopted  by  the  act  of  1835.  The  borough  au- 
thority provided  by  the  act  of  1835  was  the  council, 
the  same  authority  that  had  been  developed  in  the 
preceding  history  of  the  English  municipality.  The 
council  was  then  made  to  consist  of  the  mayor,  alder- 
men, and  councillors.  The  councillors  are  elected  by 
the  burgesses,  L  e,  the  municipal  members  who  possess 
the  municipal  franchise.  This  is  obtained  by  the  pay- 
ing of  rates,  and  as  rates  are  paid  by  occupiers  as  well 
as  owners,  every  householder  who  has  resided  a  certain 
time,  to  wit  six  months,  within  the  municipality  may 


LOCAL  ADMINISTRATION  IN  ENGLAND,     255 

vote.  The  decisions  of  the  courts  as  to  the  meaning  of 
householder  or  occupier  are,  however,  such  as  to  shut 
out  mere  lodgers  from  the  franchise.^  The  result  is, 
that  no  one  who  has  not  a  real  permanent  interest  in 
the  municipality  is  allowed  to  vote.  Every  municipal 
citizen  is  eligible  for  the  position  of  councillor,  as  are 
also  all  persons  non-resident  who  reside  within  fifteen 
miles  and  own  property  within  the  borough  limits  or 
pay  a  certain  amount  of  rates.^  The  term  of  office  of 
municipal  councillors  is  three  years,  one  third  of  the 
councillors  retiring  every  year.^  Municipal  elections 
are  conducted  on  the  principle  of  the  Australian  bal- 
lot act,  i,  e,  the  ballot  act  of  1872,  and  voters  must 
be  registered.*  The  aldermen  are  one  third  in  number 
of  the  councillors  and  are  elected  by  the  councillors, 
as  a  matter  of  fact,  from  their  own  number  though  this 
does  not  seem  to  be  required  by  the  law.^  Their  term 
of  office  is  longer,  being  for  six  years,  one  half  their 
number  retiring  every  third  year.^  The  mayor  is 
elected  by  the  town  council,  in  fact  though  not  neces- 
sarily by  law  from  among  the  aldermen,  and  serves  for 
the  term  of  one  year.^  The  mayor  and  the  retiring 
mayor  are  ex-officio  justices  of  the  peace.^  The  mayor, 
who  is  merely  a  member  of  the  council  is  the  only 
member  of  the  council  who  may  receive  any  remunera- 
tion,9  notwithstanding  that  service  as  municipal  officer 

'  Arnold,  Municipal  Corporations^  3d  edition,  83,  citing  L.  R.,  8  Q.  B.  D., 
195  ;  46  L.  T.  R.  (N.  S.),  253  ;  cf.  Albert  Shaw  on  **  Municipal  Government 
in  Great  Britain,"  in  Pol.  Sci.  Qu.,  IV.,  199  et  seq. 

'  Municipal  Corporations  Act  1882,  sec.  11. 

'  Jbid.y  sec.  13. 

*  Ibid. ,  sees.  50  et  seq. 

*  Ibid.y  sec.  14  ;  Arnold,  op.  cit.,  70. 

«  Municipal  Corporations  Act  1882,  sec.  14.  *  Ibid.^  sec.  155. 

'  Ibid.,  sec.  15.  '  Ibid.^  sec.  15. 


256  LOCAL  ADMLNLSTRATLON. 

is  obligatory  in  that  quite  a  heavy  fine  is  imposed  upon 
refusal  to  serve/  Where  the  mayor  is  remunerated 
his  remuneration  is  fixed  in  amount  by  the  council. 

The  borough  council  has  entire  charge  of  the  whole 
of  the  municipal  civil  service.  With  hardly  an  excep- 
tion it  appoints,  directs,  and  removes  all  officers  of  the 
borough,  and  may  establish  such  new  offices  as  it 
thinks  best  to  establish  and  fixes  the  salaries  that  are 
attached  to  them.^  Further  it  has  complete  control 
over  the  strictly  mimlcipal  administration,  decides 
within  the  limits  of  the  law  what  branches  of  adminis- 
tration shall  be  attended  to  by  the  borough  {e,  g,  may 
decide  to  establish  and  maintain  municipal  gas-works, 
or  means  of  communication  within  the  limits  of  the 
borough  such  as  tramways),  fixes  the  amount  of  rates 
that  are  to  be  levied  in  order  to  support  the  municipal 
administration,  and  has  the  entire  charge  of  the  finan- 
cial administration  of  the  borough.^  With  the  large 
grants  of  power  affecting  purely  local  matters  there 
has  been  formed  at  the  same  time  quite  an  extensive 
administrative  control  which  is  exercised  by  the  cen- 
tral authorities  at  London  over  the  borough  officers 
and  authorities.  This  administrative  control  is  exer- 
cised for  the  most  part  by  the  treasury  and  the  local- 
government  board."*  It  will  be  seen  from  this  descrip- 
tion of  the  position  of  the  tow^n  council  that  there  has 
been  no  attempt  made  to  distinguish  between  the  de- 
liberative and  the  purely  executive  or  administrative 

^  Ibid.,  sees.  34  and  35. 

^  Ibid.,  sees.  1 7-2 1. 

^  Local  Government  and  Taxation  in  the  United  Kingdom^  edited  by  J.  Pro- 
byn,  280,  281.  Most  of  these  powers  have  been  conferred  by  other  aets  than 
the  act  of  1882. 

^Ibid.,  282  and  283. 


LOCAL  ADMINISTRATION  IN  ENGLAND.     257 

functious  discharged  in  the  borough,  but  that  all  func- 
tions of  purely  local  administration  are  attended  to  by 
the  one  authority,  the  borough  council.  There  are  no 
executive  departments  like  those  of  the  American  city. 
In  order  more  carefully  to  supervise  the  work  of  de- 
tailed administrative  work  the  council  usually  divides 
itself  into  committees  each  of  which  has  one  or  more 
of  the  administrative  branches  to  attend  to.^  Thus  we 
find  in  all  boroughs  which  still  have  charge  of  the 
police,  the  watch  committee,  which  attends  to  the  ad- 
ministration of  the  borough  police.^  Under  each  of 
these  committees  there  is  a  subordinate  officer  who  is 
to  carry  out  the  commands  and  directions  of  the  coun- 
<;il  or  its  proper  committee.  Thus  in  the  administra- 
tion of  the  police  there  is  a  superintendent  of  police.^ 

Finally  in  addition  to  being  the  strictly  borough 
-authority  the  borough  council  is  made  by  the  public- 
health  act  of  1875  the  sanitary  authority  and  as  such 
has  the  usual  functions  to  discharge.*  The  borough  is 
also  the  school  district,  and  where  there  are  public 
schools  in  the  borough,  which  is  often  the  case,  there 
is  established  a  school  board  which  is  separate  and 
apart  from  the  council  and  elected  in  the  way  provided 
for  all  school  elections,  i.  e,  by  the  rate-payers,  provi- 
sion being  made  for  minority  representation  in  order 
to  allow  of  the  representation  of  an  ecclesiastical  mi- 
nority. Where,  however,  there  are  no  public  schools 
supported  by  the  district,  there  is  what, is  called  a 
school-attendance  committee  of  the  borough  council, 
which  is  to  see  that   the  compulsory-education  act  is 

'  Municipal  Corporations  Act  1882,  sec.  22. 

*  Ibid.,  sees.  190-195. 

^  Probyn,  Local  Government  and  Taxation,  etc.^  279. 

^Ibid. 


258  LOCAL   ADMLNISTRATION. 

enforced.  This  school-attendance  committee  is  ap- 
pointed in  school  districts,  which  are  not  at  the  same 
time  municipal  boroughs,  by  the  guardians  or  by  the 
local  authority  of  an  urban  sanitary  district.^ 

2.  The  local-government  district. — England  was  by 
an  act  of  1872  divided  into  sanitary  districts  which  are 
now  governed  by  the  consolidated  public-health  act  of 
1875.^  Provision  was  made  for  rural  sanitary  districts 
and  for  urban  sanitary  districts.  The  former  consist 
of  such  portions  of  the  poor-law  unions  as  have  not 
been  formed  into  urban  sanitary  districts ;  the  latter 
are  found  in  the  boroughs  and  in  all  aggregations  of 
inhabitants  which  have  been  declared  by  the  local- 
government  board  at  London  to  be  urban  sanitary 
districts  or  local-government  districts.  Further  various 
special  acts  have  also  formed  into  urban  sanitary 
districts,  under  particular  organizations,  other  portions 
of  the  country  which  are  then  called  improvement  act 
districts.^  As  these  are  governed  by  charters  peculiar 
to  them,  and  as  the  borough  has  already  been  con- 
sidered, it  only  remains  to  speak  of  the  local-govern- 
ment district  under  the  consolidated  public-health  act 
of  1875.  Each  of  these  local-government  or  urban 
sanitary  districts  is  governed  by  a  local  board  of 
health  elected  by  the  rate-payers  and  owners  of  property 
according  to  the  general  system  of  plural  voting  which 
has  been  described  in  what  was  said  in  connection 
with  the  union.'^  The  term  of  office  of  member  of  the 
board  is  three  years,  one  third  of  the  members  retiring 
every  year.  Retiring  members  are,  however,  re- 
eligible.     Such   a   board    has   veiy   much    the   same 

(     '  Craik,  The  State  and  Education ,  113.  2  jbid.,  109. 

*  Chalmers,  op.  cit.,  108.  ^  Ibid.,  iii. 


LOCAL  ADMINISTRATION  IN  ENGLAND.     259 

powers  over  tlie  district  that  the  borough  council  has 
over  the  borough.  In  the  first  place  the  board  has 
almost  complete  control  over  the  entire  subordinate 
personnel  of  the  service  of  the  district ;  in  the  second 
place  it  has  to  decide  all  matters  of  interest  to  the 
district,  but  does  not  in  any  case  have  charge  of  the 
police  within  the  district,  who  are  simply  a  part  of  the 
county  police  and  under  the  charge  of  the  county 
police  authority.  Like  the  municipal  borough,  the 
local-government  district  has  competence  only  in  really 
local  matters.  It  has  nothing  to  do  with  the  general 
administration  of  the  country  except  in  so  far  as  the 
sanitary  administration  may  be  considered  a  part  of 
the  general  administration.  Thus  it  has  nothing  to  do 
with  the  administration  of  public  charity  which  in  the 
districts  is,  as  in  all  other  places,  in  the  hands  of  the 
guardians  of  the  poor,  or  with  the  administration  of  the 
public  board  schools,  which  are  attended  to  by  the 
parish  organized  as  a  school  district.  Its  main  powers 
have  to  do  with  the  care  of  the  streets,  the  beautifying 
of  the  town,  and  the  preservation  of  the  public  health, 
which  is  its  duty  jpar  excellence.  Like  the  borough, 
the  local-government  district  is  often  subject  to  a  cen- 
tral administrative  control.  This,  as  in  the  case  of  the 
borough,  affects  the  important  acts  connected  with  the 
financial  administration  and  is  so  formed  that,  through 
its  exercise,  extravagance  and  unwisdom  may  be  pre- 
vented. 

V. — Central  administrative  control. 

The  central  administrative  control  to  which  allusion 
has  so  often  been  made  and  which  has  resulted  from 
the  increase  within  recent  years  of  local  powers  is 
exercised  in  the  following  ways  : 


26o  LOCAL  ADMINISTRATION. 

1.  Necessity  of  cenPral  approval  of  local  action. — In 
order  that  certain  of  the  acts  of  the  local  authorities 
may  be  of  force  it  is  necessary  that  they  be  approved 
by  the  central  government.  Thus,  while  the  local 
authorities  very  generally  have  the  power  of  issuing 
ordinances  of  a  police  character  for  the  regulation  of 
certain  local  matters  and  of  sanctioning  them  within 
certain  limits,  as  a  general  thing  such  ordinances  must 
be  approved  either  by  the  privy  council,  the  treasury, 
or  the  local-government  board  before  they  may  be 
enforced.  The  same  is  true  of  several  of  the  most  im- 
portant acts  connected  with  the  local  financial  admin- 
istration. Thus  as  a  general  thing  all  local  loans  need 
the  approval  of  the  treasury  or  the  local-government 
board,  and  where  a  borough  is  permitted  by  such  acts 
as  the  artisans'  dwelling-houses  acts  to  enter  into  a 
large  scheme  of  local  improvements  the  confirmation  of 
their  decision  to  put  the  acts  into  operation  is  generally 
necessary.  In  this  case,  as  in  some  other  instances,  the 
confirmation  is  to  be  made  by  the  local-government 
board,  but  has  no  force  until  it  has  in  its  turn  been 
approved  by  Parliament.^ 

2.  Central  audit  of  accounts. — In  almost  all  cases  ex- 
cept that  of  the  boroughs  the  accounts  of  the  various 
local  authorities  are  subject  to  a  central  audit  and  must 
for  this  purpose  be  sent  in  to  the  local-government 
board  at  London.  For  the  purpose  of  auditing  these 
"accounts  the  local-government  board  has  divided  the 
country  into  auditing  districts  to  each  of  which  there 
is  attached  a  district  auditor  under  the.  control  of  the 
local-government  board  who  has  the  right,  subject 
to  an  appeal  to  the  local-government  board,  to  refuse 

'  Chalmers,  op.  cit.,  156. 


LOCAL  ADMLNISTRATION  IN  ENGLAND.     261 

to  allow  to  the  officer  who  has  been  spending  money 
an  allowance  for  money  which  in  his  opinion  has  been 
spent  contrary  to  the  provisions  of  the  laws.*  Accounts 
in  the  boroughs,  are  not,  however,  subject  to  this  central 
audit,  but  are  audited  by  the  borough  auditors,  two  of 
whom  are  elected  by  the  municipal  citizens  and  one  of 
whom  is  appointed  by  the  mayor  and  is  known  as  the 
mayor's-  auditor.^ 

3.  Powers  of  convpuUion, — One  of  the  reasons  for 
the  reform  which  has  been  made  in  the  local-govern- 
ment system  since  1834,  was  the  desire  to  prevent  any 
locality  from  escaping  the  burdens  which  were  imposed 
upon  it  by  the  law,  as  the  agent  of  the  central  admin- 
istration, and  from  so  neglecting  such  matters  as  were 
of  vital  interest  to  the  people  of  the  localities  as  to  en- 
danger their  welfare.  One  of  the  characteristics  of  the 
central  administrative  control  which  was  introduced  as 
a  result  of  the  reform  was  therefore  the  grant  of  the 
power  to  the  central  administration  to  step  in  and  force 
a  negligent  locality  to  perform  the  duties  which  were 
imposed  upon  it  by  the  laws.  This  control  is  particu- 
larly strong  in  the  poor-law  administration,  in  the 
sanitary  administration,  and  in  the  administration  of 
public  instruction.  In  the  poor-law  administration  the 
local -government  board  has  the  power  to  lay  down 
general  rules  of  management  which  the  boards  of  poor- 
law  guardians  are  bound  to  observe,  and  to  force  the 
guardians  to  provide  the  necessary  accommodation  for 
the  poor.  In  the  sanitary  administration  the  same  body 
has  the  power  to  force  the  localities  to  do  what  it  con- 
siders necessary  for  the  preservation  of   the   public 

'  Ibid.,  156  and  157. 

*  Municipal  Corporations  Act  1882.  sees.  25  and  26. 


262  LOCAL  ADMINLSTRATION. 

health  and  in  case  of  the  refusal  of  the  locality  to  obey, 
the  local-government  board  has  the  right  to  appoint 
a  temporary  commission  to  do  what  is  necessary  and 
to  raise  the  money  expended  by  such  commission  by 
means  of  a  rate  to  be  levied  on  the  rate-payers  of  the 
locality.^  So  in  the  matter  of  education.  If  the  educa- 
tion department,  i,  e,  the  committee  of  the  privy 
council  for  education,  believes  that  there  is  not  suf- 
ficient accommodation  for  the  children  of  a  given  locality 
in  the  private  schools  which  come  up  to  the  govern- 
ment requirements,  it  has  the  right  to  order  the  election 
of  a  school  board,  which  then  has  the  right  to  levy  taxes 
and  borrow  money  for  the  support  of  the  public  schools, 
or  board  schools  as  they  are  called,  which  are  estab- 
lished by  such  school  board.  If  the  locality  refuses  to 
take  the  necessary  action,  the  education  department  has 
the  right  to  proceed  as  in  the  case  of  bad  sanitary  con- 
ditions.^ As  the  borough  organization  proper  does  not, 
as  has  been  said,  attend  to  the  poor-law  or  educational 
administration,  and  as  in  the  case  of  the  sanitary  ad- 
ministration the  borough  council  is  the  local  authority, 
subject,  like  all  local  health  boards,  to  the  control  of 
the  local-government  board  at  London,  the  central 
administration  has  through  these  powers  of  compulsion 
a  pretty  complete  power -over  the  administration  of 
those  matters  which  affect  the  general  welfare,  whether 
attended  to  in  the  urban  or  rural  districts. 

4.  Disciplinary  powers  over  the  local  civil  service, — 
Besides  the  powers  relating  directly  to  the  conduct  of 
the  administration  which  have  been  mentioned,  the 
local-government     board     at     London    has    also  the 

*  Chalmers,  op.  cit.,  121. 

*  Ibid.,  151^154. 


LOCAL  ADMINISTRATION  IN  ENGLAND,     263 

power  of  confirmation  of  almost  all  the  appointments 
to  subordinate  positions  in  the  civil  service  of  the 
boards  of  poor-law  guardians,  and  has  the  sole  right 
to  remove  such  subordinate  officers.  It  was  considered 
necessary  to  give  to  the  central  supervisory  authority 
of  the  poor-law  administration  such  strong  powers  of 
central  control  if  it  was  to  be  hoped  that  any  sort  of 
order  was  to  be  got  out  of  the  chaos  which  had  been 
the  result  of  the  uncontrolled  exercise  of  the  local 
powers  possessed  by  the  overseers  of  the  poor  and  the 
justices  of  the  peace  under  the  old  system/ 

5.  Grants  in  aid  and  central  inspection. — In  several 
cases  the  law  provides  for  grants  of  money  made  either 
by  the  central  government  or  by  the  county  councils 
to  the  various  local  authorities  in  aid  of  an  administra- 
tive service,  e.  g.  the  police.  As  these  grants  are  made 
only  after  the  particular  service  has  been  inspected  by 
the  central  government,  and  certified  by  it  to  have  at- 
tained the  standard  required  by  the  law,  the  central 
administration  may,  by  appealing  to  the  self-interest 
of  the  localities,  exercise  a  large  control  over  them  in 
the  interest  of  administrative  efficiency  and  uniformity. 

VI. — General  characteristics. 

The  general  characteristics  of  the  English  system 
are  the  same  as  those  of  the  system  obtaining  in  the 
United  States.  That  is  the  legislature  enumerates  the 
powers  of  the  localities  and  itself  exercises  a  great  con- 
trol over  their  actions.  One  important  difference  is, 
however,  to  be  found  in  the  way  in  which  thi«  control 
is  exercised.  While  in  the  United  States  all  local 
legislation  is  subject  to  about  the  same  rules  of  proce- 

'  IHd. 


264  LOCAL  ADMINISTRATION. 

dure  as  are  in  force  for  all  legislation,  i.  e.  local  bills 
are  submitted  to  the  proper  committees  which  may  or 
may  not,  as  they  see  fit,  give  a  hearing  to  parties  inter- 
ested, and  are  subjected  to  the  regular  number  of  read- 
ings, viz.,  three ;  in  England  the  absolute  impossibility 
of  the  exercise  by  the  legislature  of  any  effective  con- 
trol over  private  and  local  legislation  through  the  pro- 
cedure adopted  for  ordinary  legislation  has  led  the 
English  Parliament  to  develop  a  special  procedure 
which  must  be  followed  in  all  cases  of  local  legislation 
and  to  the  insistence  through  the  adoption  of  certain 
acts  known  as  "  clauses  acts  "  upon  the  insertion  in  all 
special  and  local  bills  of  certain  important  conditions. 
Further  the  rules  of  procedure  adopted  require  that 
all  parties  interested  in  the  passage  of  such  bills  shall 
have  notice  of  them  and  that  all  the  bills  themselves 
shall  be  examined  most  thoroughly  before  particular 
committees,  on  which  examination  counsel  are  heard 
and  witnesses  examined.  Finally  in  many  cases  local 
bills  have  to  be  approved  by  the  local -government 
board  at  London  or  some  other  central  authority. 
The  development  of  this  system  has  led  to  the  forma- 
tion of  a  special  class  in  the  legal  profession  who  are 
known  as  parliamentary  barristers,  and  whose  sole  oc- 
cupation is  the  representation  of  parties  before  the 
parliamentary  committees  appointed  for  the  purpose  of 
examining  local  and  private  bills.^ 

The  only  other  points  in  which  the  English  system 
differs  essentially  from  that  adopted  in  the  United 
States  are:  the  more  concentrated  character  of  the 
local  organization  {e,  g,  in  the  county  and  borough) ; 

*  For  a  good  description  of  the  methods  pursued  see  De  Franqueville,  Le 
P ar lenient  et  le  Gouvernement  Briianniques ,  vol.  III.,  chap,  xxxviii. 


LOCAL  ADMINISTRATION  IN  ENGLAND.     265 

the  greater  strengtli  of  the  central  administrative  con- 
trol which  has  been  rendered  necessary  by  the  posses- 
sion by  the  localities  of  rather  larger  powers  than 
those  possessed  by  the  United  States  localities,  though 
it  must  be  remembered  that  the^same  principle  of  the 
enumeration  in  the  statutes  of  loc^l  powers,  which  is 
in  force  in  the  United  States,  is  iri  force  in  England ; 
and  the  greater  number  and  more  confused  condition 
of  the  local  areas.  While  in  America  the  attempt  has 
been  made,  and  with  generally  great  success,  to  confer 
almost  all  powers  of  local  administration  upon  the 
county  and  town  or  some  division  of  the  town  such  as 
the  school  district,  in  England  there  is  little  coincidence 
of  areas.  Almost  each  branch  of  administration  has 
its  own  area  and  in  many  cases  its  own  administrative 
organization.  The  tendency  is,  however,  towards  a 
simplification  of  these  conditions. 

It  is  to  be  noticed  that  the  system  whose  outline 
has  been  given,  does  not  apply  to  the  new  county 
of  London  established  by  the  act  of  1888,  whose 
organization  differs  considerably  in  details  from  that 
possessed  by  the  ordinary  English  county ;  nor  to  the 
City  of  London,  which  is  formally  governed  now  very 
much  as  it  was  during  the  middle  ages,  and  in  such  a 
peculiar  way  that  little  profit  may  be  derived  from 
a  study  of  its  institutions. 


CHAPTER  VI. 

THE   FRENCH    SYSTEM    OF   LOCAL    ADMINISTRATION. 

/. —  The  continental  method  in  general. 

The  continental  method  of  providing  for  the  partici- 
pation of  the  localities  in  the  work  of  administration  is 
quite  different  from  the  English  method.  In  the  first 
place  the  whole  work  of  administration  is  divided  into 
central  administrative  vrork  which  is  to  be  attended  to 
in  the  local  districts  by  officers  regarded  as  central 
^officers,  and  into  local  administrative  work  imposed 
upon  the  local  municipal  corporations  and  attended  to 
by  them  largely  in  accordance  with '  their  own  ideas 
and  through  their  own  officers,  who  are  in  many  cases 
separate  and  distinct  from  the  representatives  of  the 
central  administration  in  the  local  districts,  although 
largely  subject  to  the  control  of  the  central  officers, 
In  this  system  local  power  is  given  by  the  legislature 
by  ^eneraj/grant,  but  its  exercise  is  subject  to  centra 
istrative  control.  The  legislature  has  never  a 
tempted  to  enumerate  the  duties  of  the  locaLcorpora 
tions  with  the  same  minuteness  as  in  England  and  in 
the  United  States.  The  statutes  simply  lay  down  the 
general  principles  of  local  administration,  leaving  to 
the  local  corporations  to  carry  them  out  in  their  de- 
tails.    The  legislature  simply  says  that  the  local  cor- 

266 


•e 


THE  FRENCH  SYSTEM.  267 

porations  are  to  attend  to  local  affairs  or  tliat  tlie  prin- 
cipal authority  in  a  given  distnct,  which  is  at  the  same 
time  a  corporation,  is  to  control  by  its  decisions  the 
affairs  of  the  particular  locality.  What  "  local  affairs  " 
means  is  to  be  derived  from  a  perusal  of  the  laws  with 
the  object  of  finding  what  the  legislature  has  said 
shall  be  attended  to  by  the  central  administration. 
X  All  that  in  the  nature  of  things  may  be  called  adminis-r 
tration  and  can  be  attended  to  by  the  localities  and. 
has  not  been  put  into  the  hands  of  one  of  the  central! 
authorities  is  then  regarded  as  local  in  character.  The; 
local  municipal  corporations  are  not  therefore,  as  inj 
the  United  States,  authorities  of  enumerated  powers, 
but  have  the  right  to  exercise  all  such  powers  as  they 
wish  to  exercise,  and  in  the  manner  they  see  fit  to 
adopt,  provided  they  do  not  violate  the  letter  or  the; 
spirit  of  the  law.  But  they  are  subject  to  a  central 
administrative  control  which  is  to  prevent  them  from 
encroaching  upon  the  competence  of  the  central  gov- 
ernment and  in  many  cases  from  acting  extravagantly: 
or  unwisely.  X 

In  accordance  with  pure  theory  such  a  system  of 
territorial  distribution  of  administrative  functions 
necessitates  the  existence  of  two  separate  sets  of 
authorities,  one  for  the  central  administrative  and  one 
fcr  the  local  administrative  work.  The  administrative 
[istricts  for  the  purposes  of  central  administration 
may  not  be  the  same  as  the  districts  of  the 
municipal  corporations.  Seldom,  however,  do  we  find 
the  pure  theory  carried  to  its  logical  results.  Central 
authorities  are  often,  both  in  France  and  Germany, 
called  upon  to  attend  to  local  matters  at  the  same  time 
that  they  are  attending  to  central  matters  and  vice 


26S  LOCAL   ADMINISTRATION, 

verm.  But  in  almost  all  cases  there  is  a  clear  distinc- 
tion between  the  two  spheres  of  local  and  central 
action  even  when  one  authority  acts  in  both  spheres. 
The  central  control  over  such  an  authority  will  differ 
according  as  it  is  attending  to  central  or  local  busi- 
ness. 

The  origin  of  this  general  system  is  found  in  the 
feudal  system  which  was  adopted  more  completely  on 
the  continent  than  in  England  and  in  accordance  with 
which  local  autonomy  received  the  fullest  recognition.^ 

//. — History  of  the  French  system  of  local  administration. 

1.  Ujp  to  the  revolution. — The  territorial  unity  of  the 
French  state  was  attained  many  years  ago.  Thfi^great 
vassals,  who  under  a  weak  monarchy  might  have 
developed  into  independent  princes,  and  whose  -do- 
mains might  then  have  formed  separate  common- 
wealths,! were  suppressed  by  the  kings  and  their  lands 
became  provinces  of  the  kingdom  of  FranceJ  Most 
matters  of  administration,  which  during  the  feudal 
regime  had  been  attended  to  by  the  vassals,  became  a 
part  of  the  royal  administration  and  were  attended  to 
J  by  the  royal  officers  who  were  subject  to  a  strong  cen- 
tral control.  These  were  the  intendants,  who  date 
from  the  time  of  Richelieu  and  Louis  XIII,  and  whose 
work  was  performed  in  the  provinces  or  generalities  as 
they  were  sometimes  called,^  and  the  council  of  the 
king  at  the  centre  which  directed  all  their  actions  and 
heard  appeals,  taken  by  individuals  aggrieved,  from 
their  decisions.^  .  The  great  centralization  of  govern- 

^  Cf.  Stengel,  Organisation  der  Preussischen  Verwaltung,  i8  and  19. 

*  Aucoc,  op.  cit.,  I.,  150,   151  ;    Dethan,  L' Organisation  des  Consdls  GMi' 
raux,  4. 

•  Aucoc,  I.,  127. 


THE  FRENCH  SYSTEM.  269 

ment  under  the  absolute  monarchy  left  little  room  for 
any  important  local  authorities ;   though  we  do  find] 
even  in  the  times  of  the  most  extreme  centralization] 
that  there  were  in  certain  of  the  provinces,  called  jpays ; 
cf'etats  and  occupying  a  privileged  position,  local  as-! 
semblies  having  more  or  less  control  over  the  actions  | 
of  the  intendants ;  and  also  that  in  some  of  the  largest  • 
of  the  cities  the  people  had  more  or  less  well-defined  | 
rights  to  elect  their  municipal  officers,  rights,  however,  | 
of  which  the  king  was  endeavoring  in  the  interest  of  i 
centralized   government   to    deprive    them/     The  at- 
tempt made   by  the  government  of.  Louis  XVI  just 
before  the  revolution  to  introduce  into  all  parts  of  the 
kingdom  provincial  assemblies   modelled   on   the   as- 
semblies  of    the  pays    cfetats    failed ;  ^    and    when 
the  revolution  came  in  1789  it  found  a  most  highly 
centralized  system  of  administration — a  system  which 
hardly  recognized  the  local  districts  as  anything  more 
than  administrative    circumscriptions,   possessing  few 
if   any   corporate    powers.      In   these    districts    most 
matters  of  administration  were  attended  to  by  officers 
either  appointed   and   removed    by  the   king  in  his 
pleasure,  or  else  subject  to  a  strict  central  control. 
The  system  which  the  revolution  received  as  a  legacy 
from   the    absolute    monarchy   it   made    few  radical 
changes  in. 

2.  The  revolution, — The  aim  of  the  revolution  was 
social  and  political  rather  than  administrative  reform. 
The  revolution  destroyed  the  social  system  on  which 
the  absolute  monarchy  rested  and  introduced  the 
political  principle  that  the  people  should  have  a  larger 

'  Dareste  de  la  Chavanne,  Histoire  de  V Administration  en  France,  Chap.  VI. 
^  Dethap,  oi).  cit.,  6  et  seq. 


270  LOCAL  ADMINISTRATION. 

influence  in  the  management  of  the  government,  but  it 
did  little  more  in  the  way  of  permanent  administrative 
reform  than  to  make  the  system  more  symmetrical  than 
it  had  been  before.  The  reason  why  no  greater  change 
was  made  in  the  general  character  of  the  administra- 
tive system  was  that  the  revolution  really  aimed  at  the 
same  end  that  had  been  before  the  eyes  of  the  absolute 
monarchy.  This  end  was  the  crushing  out  of  feudalism, 
the  taking  away  from  the  privileged  classes  those  semi- 
political  and  social  privileges  and  exemptions  which 
had  been  the  cause  of  so  many  of  the  miseries  of  the 
absolute  monarchy,  but  for  which  the  absolute 
monarchy  was  responsible  only  in  so  far  as  it  had 
allowed  them  to  continue  to  exist,  after  the  duties 
which  had  been  originally  associated  with  them  had 
been  assumed  by  the  Crown,  and  after  the  expenses 
which  their  performance  necessitated  had  been  imposed 
upon  the  tax-payers.  The  cause  of  the  dissatisfaction 
of  the  people  with  the  absolute  monarchy  is  ^to  be 
found  not  so  much  in  the  character  of  the  government 
which  it  gave  the  people  as  in  the  fact  that  its  progress 
in  the  desired  direction  of  abolition  of  feudal  privileges 
seemed  almost  to  have  ceased.  Therefore  we  find  that 
the  chief  reforms  of  the  revolution  were  social  and,  to 
a  degree,  political  but  not  administrative.  The  cele- 
brated night  of  the  fourth  of  August,  1789,  saw  the 
abolition  at  one  time  of  about  all  that  was  left  of  the 
feudal  regime,  while  the  exemption  of  the  privileged 
classes  from  taxation  was  done  away  with  by  the  new 
and  proportional  system  of  taxation  formulated  and 
enacted  by  the  revolutionary  leaders  in  the  con- 
stituent assembly.  After  the  constituent  assembly 
had  thus  cleared  away  the  debris  of  the  feudal 
system  it  would  have  been   suicidal  for  it  to  estab- 


THE  FRENCH  SYSTEM. 


271 


lisli  any  system  of  administration  in  which  large 
rights  of  local  government  were  given  to  the  people  of 
the  localities.  For  the  people,  as  a  whole,  were  so 
utterly  incapacitated  for  political  work,  through  long 
administrative  and  governmental  tutelage,  that  it  is  im- 
probable that  they  could  have  succeeded  in  governing 
themselves  well.  At  first  it  is  true  there  was  a  slight 
attempt  in  the  direction  of  decentralization,  but  this, 
as  might  have  been  expected,  was  unsuccessful  and  led 
to  disorganization  and  inefficient  government,  as  indeed 
did  all  attempts  at  reorganization  until  the  government 
of  the  directory  when  Napoleon  came  into  power.^ 

3.  The  Napoleonic  legislation, — Napoleon  is  to  France 
what  the  Norman  kings  are  to  England.     He  moulded; 
the  form  of  her  local  institutions.      The  laws  and  de- ' 
crees  which  were  passed  during  the  period  of  his  control 
of  the  government  have,  it  is  true,  received  during  this 
century  most  important  modifications,  but  the  main 
principles  of  the  present  system  of  local  administration 
are  even  now  to  be  found  in  them.     Napoleon   was 
satisfied   that  the  social  principles  of  the  revolution 
could  be  adhered  to  only  through  the  establishment  of  \ 
a  most  centralized  system  of  administration  and  govern-  \ 
ment,  by  means  of  which  the  impulse  to  action  should  \ 
come  from  the  centre  and  which  should  be  controlled 
by  those  who  were  in  sympathy  with  the  new  order  of ' 
things.     Since   Napoleon's    time,  however,  there   has 
been  great  progress  in  the  direction  of  decentralization. 
This  began  with  the  government  of  the  restoration  and 
reached  its  climax  in  the  communes  act  of  1884^;  and 

*  Aucoc,  I.,  151-3  ;  Dethan,  i6  et  seq. 

*  Cf.  Ducrocq,  Droit  Administratif,  g5  et  seq.  The  laws  which  did  most  in 
the  way  of  decentralization  are  those  of  June  22,  1833;  March  21,  1831;  July  18, 
1866;  August  10,  1871;  April  5,  1884;  and  the  decrees  of  March  25,  1852;  and 
April  13,  1 86 1. 


272  LOCAL  ADMINLSTRATION. 

lias  consisted  in  the  recognition  of  the  possession  by 
the  localities,  or  at  least  the  most  important  of  the 
localities,  of  juristic  personality  and  that  there  belongs 
to  them  a  sphere  of  action  of  their  own  in  which  the 
central  administration  is  to  interfere  but  little.  But 
notwithstanding  the  decentralization  which  has  been 
going  on,  the  French  system  of  administration  retains 
even  at  the  present  time  quite  enough  of  the  old  Na- 
poleonic principles  to  make  it,  as  compared  with  our 
own,  a  system  which  from  the  administrative  point  of 
view  is  quite  centralized. 

///. —  The  department. 

The  entire  country  is  divided  into  departments,  each 
of  which  is  an  administrative  district  for  many  matters 
of  central  concern  and  is  at  the  same  time  a  municipal 
corporation  with  its  own  affairs  to  attend  to  and  its 
own  officers  to  attend  to  many  of  these  affairs.^ 

1.  ^riie  prefect, — In  each  of  these  departments  is 
placed  an  officer  called  the  prefect,  who  is  appointed 
and  removed  by  the  President  of  the  republic  on  the 
proposition  of  the  minister  of  the  interior.'^  He  receives 
a  large  salary,  and,  from  the  nature  of  his  position,  is 
obliged  to  devote  his  entire  time  to  his  work.^  The 
prefect  is  thus  a  professional  officer  in  that  his  work  is 
his  profession,  but  the  laws  do  not  require  any  special 
qualifications,  the  position  being  regarded  as  a  purely 
political  one,  in  the  filling  of  which  the  President  shall 
be  allowed  a  wide  discretion.^      The  prefect  is  at  the 

^  Aucoc,  I.,  205. 

^  L.  2^pluvi6se,  an  VIII,  art,  2.     This  is  the  great  Napoleonic  administrative 
code. 

^  Cf.  Decree  Dec.  23,  1872. 

^  Block,  Diclionnaire,  etc.,  975,  sec.  23. 


THE  FRENCH  SYSTEM.  273 

same  time  the  representative  in  the  department  of  the 
central  government  and  the  executive  officer  of  the 
purely  local  administration  of  the  department/  That 
is  he  is  a  central  and  a  local  officer.  / ,  As  a  central  of- 
ficer he  is  the  subordinate  .of  all  the  ministers  of  the  Ji 
central  departments  at  Paris.  He  is  to  see  that  all  the  1^ 
laws  and  decrees  and  central  instructions  sent  out  by 
the  ministers  are  put  into  operation.^  He  appoints  and 
dismisses  a  vast  number  of  officers  employed  in  the  ad- 
ministrative services  of  the  central  government  which 
need  attention  in  the  department.  Among  these  of- 
ficers are  many  who  in  the  United  States  would  be 
appointed  directly  by  the  heads  of  departments,  e,  g, 
he  has  to  appoint  all  the  wardens  of  the  prisons,  the 
less  important  postmasters  and  the  letter  carriers,  the 
less  important  police  officers,  supernumeraries  in  the 
telegraph  service  which  is  a  part  of  the  post  office, 
similar  officers  in  the  service  of  the  direct  and  indirect 
taxes,  highway  overseers,  teachers  in  the  primary 
schools,  etc.,  etc.^  He  has  also  a  wide  power  of  direc-* 
tion  and  control  over  the  acts  of  all  these  officers  and 
may  remove  them  from  office.'^  He  has  a  large  police 
ordinance  power  where  the  matters  to  be  regulated  are 
of  such  a  character  as  to  need  uniform  regulation  for  the 
entire  department  or  for  several  communes  therein. s 
This,  power  of  ordinance  is,  however,  the  delegated 
ordinance  power,  as  his  ordinances  must  always  be 
based  upon  some  statutory  provision  in  order  to  have 
any  force.^  The  prefect  also  represents  the  central 
government  in  the  courts  whenever  it  sues  or  is  sued.^ 

'  Aucoc,  I.,  155.  ■*  Ibid.,  sec.  15  and  authorities  cited. 

*  Aucoc,  I.,  157.  -     5  L^    April  5,  1884,  art.  99. 

*  Block,  Dictionnaire,  753,  sec.  20.  '  Aucoc,  I.,  159. 

'  L.  28  pluvidse,  fl«  Vlil,    art.  4. 


274  LOCAL   ADMLNLSTRATLON. 

\     Finally,  as  agent  of  the  central  government,  the  prefect 
exercises  a  large  control  over  the  local  administration 

hof  the  communes  within  the  department.^ 
l^In  the  second  place  the  prefect  is  a  local  ojfidcer.  He 
p^  is  the  executive  officer  of  the  local  administration  of 
the  department.  He  appoints  all  the  officers  in  the 
departmental  service.^  He  has  charge  of  the  financial 
administration  of  the  department,  issuing  all  orders  of 
payment  on  the  department  treasury.^  He  directs  the 
execution  of  all  departmental  public  vrorks.*  He 
draws  up  the  departmental  budget  or  estimate  of  ex- 
penses and  receipts  and  represents  the  department 
before  the  courts.^  As  executive  of  the  departmental 
municipal  corporation  the  prefect  is  to  execute  the  de« 
cisions  and  resolutions  of  the  general  council  which 
finally  determines  how  the  affairs  of  the  department 
shall  be  managed.  As  representative  of  the  central  \ 
government,  however,  the  prefect  is  subject  to  the  ^ 
direction  and  control  of  the  central  departments  at 
Paris. 

2.  The  Gowndl  of  the  pi^efecture. — By  the  side  of  the 
prefect  is  placed  a  council  called  the  council  of  the 
prefecture  whose  members  are  appointed  and  dismissed 
by  the  President  of  the  republic,  are  salaried,  and  may 
not  follow  any  other  occupation.^  They  are  thus  pro- 
fessional in  character.  This  body  is  at  the  same  time 
an  administrative  council  and  an  administrative  court. 
j .  As  an  administrative  council  the  council  of  the  pre- 
fecture is  called  upon  in  many  instances  to  advise  the 
prefect.     But  while  the  prefect  is  thus  bound  in  many 

*  Block,  Dictionnaire,  756,  art.  45.         *  Aucoc,  I.,  254. 

'Aucoc,  I.,  158,  254.  5  L.  Aug.  10,  1871. 

'  L.  Aug.  10,  1871,  art.  65.  *  L.  June  21,  1865,  arts.  2  and  3. 


THE  FRENCH  SYSTEM.  275 

cases  to  ask  tlie  advice  of  the  council,  he  is  never 
obliged  to  act  in  accordance  with  the  advice  so  ob- 

l  tained/  This  is  in  accordance  vrith  the  French  princi- 
ple, which  has  already  been  alluded  to,  by  which  it  is 
hoped  to  obtain  a  concentrated  responsibility  for  every 
administrative  act  and  at  the  same  time  to  make  it  cer- 
tain that  the  most  important  acts  will  not  be  performed 
except  after  proper  deliberation.  In  addition  to  acting 
as  a  council  of  advice  the  council  of  the  prefecture  is 
in  one  or  two  cases  to  act  independently  of  the  prefect. 
Thus  the  commune  may  not  undertake  a  lawsuit  with-  1 
out  first  obtaining  the  consent  of  the  council  of  the  ' 
prefecture.'^ 

3.  Departmental  commission, — Dp  to  1871  the  pre- 
fect acted  in  his  capacity  as  executive  of  the  depart- 
mental municipal  corporation  subject  to  no  permanent 
local  control.  He  had,  it  is  true,  to  execute  the  deci- 
sions of  the  general  council  of  the  department,  but  as 
this  met  usually  only  twice  a  year  his  actions  as  de- 
partmental executive  were  not  subject  to  any  effective 
control  on  the  part  of  the  departmental  authorities. 

*  The  law  of  August  10,  1871,  which  is  to  a  large  ex- 
tent a  code  for  the  administration  of  the  department, 
formed  an  authority  of  a  more  permanent  character 
than  the  general  council,  which  was  not  only  to  conj 
trol  the  prefect  in  his  administration  of  departmental 
affairs,  but  was  also  to  perform  some  of  the  local 
duties  of  the  prefect.  The  institution  was  modelled 
on  a  similar  one  in  Belgium.^  This  is  the  departmen- 
tal commission.  This  body  is  composed  of  from  four 
to  seven  members  and  on  it  all  sections  of  the  depart- 

*Aw?oc,  I.,  163.  ^  Ibid, 

'Dethan,  oj).  cit,  ch.  I.,  p.  51. 


276  LOCAL   ADMLNLSTRATION. 

ment  shall,  as  far  as  possible,  be  represented/  Its 
members  are  elected  by  the  general  council  of  the  de- 
partment,^ receive  no  salary,  and  may  follow  other 
occupations.^  It  is  thus  a  distinctively  popular  au- 
thority. It  meets  once  a  month  regularly  and  may 
meet  as  often  as  is  necessary.*  {\t%  main  duty  is  to 
control  the  administration  of  depSI1;mental  interests 
by  the  prefect)  A  Thus  it  presents  to  the  general  coun- 
cil its  views  ^  tite-  prefect's  estimates^r'departmental 
expenses.^'  It  also  examines  the  accdnnts^f  the  pre- 
fect who  has  to  lay  before  it  evefymonth  all  his  orders 
of  payment  and  his  vouchers;  ana  it  makes  such  ob- 
servations on  them  as  it  sees  fit.*!  It  makes  an  inven- 
tory of  the  property  of  the  department.  Its  consent  is 
necessary  to  the  making  of  all  important  contracts 
for  the  department  by  the  prefect  and  to  the  bringing 
and  defending  of  suits  to  which  the  department  is  a 
party.^  This  control  over  the  administration  of  de- 
partmental affairs  by  the  prefect  is  its  most  important 
duty,  but  in  addition  thereto  it  has  in  several  cases  an 
actual  power  of  decision  in  administrative  matters 
most  of  which  were,  before  the  law  of  1871,  decided 
by  the  prefect.  Thus  it  determines  the  order  of  prior- 
ity of  departmental  public  works,  and  fixes  the  manner 
of  placing  departmental  loans  when  these  matters  have 
not  been  attended  to  by  the  departmental  general 
council.^  It  has  a  series  of  duties  to  perform  relative 
to  the  highways,  aids  in  the  assessment  of  the  land  tax, 
and  appoints  the  members  of  commissions  attending 
to  works  of  a  semi-public  character  which  have  been 

^  L.  Aug.  lo,  1871,  arts.  69,  70.  "^  Ibid.,  art.  7q,  sec.  2. 

^Ibid.  ^Ibid.,  art    78. 

^ Ibid.,  art.  75.  '  Ibid.,  ait.  54. 

^ Ibid.,  zxl.  ni,  ^  Ibid.^ixri.'ii. 


THE  FRENCH  SYSTEM. 


277 


subsidized  by  tlie  department/  Finally  the  general 
council  may  delegate  its  powers  to  the  departmental 
commission.^      ) 

These  are  the  executive  officers  in  the  department, 
and,  so  far  as  the  purely  departmental  administration 
is  concerned,  they  act  mainly  by  executing  the  resolu- 
tions and  decisions  of  the  general  council  which  really 
determines  the  character  of  the  departmental  adminis- 
tration. 

4.  The  gmmiOfl  council. — The  general  council  is  com- 
posed of  members  elected  by  the  people  of  the  depart- 
ment, one  member  being  elected  in  each  canton  of  the 
department.^  The  canton  is  little  more  than  a  judicial 
and  election  district.  The  general  council  is  elected 
by  universal  suffrage.*  All  electors  twenty-five  years 
of  age  are  eligible  who  have  resided  in  a  commune  of 
the  department  six  months.^  One  quarter  of  the  mem- 
bers of  the  council  may  be  non-resident  provided  they 
have  an  interest  in  the  department  which  is  evidenced 
by  the  fact  of  paying  direct  taxes  or  the  possession  of 
landed  property  therein.^  Generally  all  professional 
officers  of  the  government  are  ineligible.^  Finally  no 
one  may  be  a  member  of  two  general  councils.^  The 
term  of  office  is  six  years,  one  half  of  the  members 
of  the  council  retiring  every  third  year.^  The  President 
of  the  republic  may  however,  dissolve  the  general 
council  by  special  decree.'°  In  case  he  does  so  he  must 
notify  the  legislature  and  must  provide  for  an  election 
for  the  foui-th  Sunday  after  the  issue  of  the  decree." 

^  L.  Aug.  10,  1871  passim.  «  L.  Aug.  10,  1871,  art.  17,  sec.  2. 

«  Ibid.,  art.  77.  '  Ibid,,  art.  8. 

'  L.  Aug.  10,  1871,  art.  4,  ^  Ibid.,  art.  9. 

*  Ibid.,  art.  5  ;  L.  April  5,  1884,  art.  14.     ^  /bid.,  art.  21. 

*  L.  Aug.  10, 1871,  art.  6  ;  L.  April  15,  1884,  art.  14.  »»  Ibid.,  art.  35. 

"  Ibid.,  art.  36. 


278  LOCAL  ADMINLSTRATl^N. 

This  body  meets  ordinarily  twice  a  year/  but  may 
be  called  together  on  any  other  occasion  by  decree  of 
the  President  of  the  republic  or  on  the  demand  of  two 
thirds  of  the  members.^  The  general  council  elects  its 
own  officers  ^  and  makes  its  own  rules/  with  the  excep- 
tion that  the  law  fixes  the  quorum  at  a  majority  of  its 
members,  and  provides  that  the  ayes  and  the  noes 
must  be  called  at  the  request  of  one  sixth  of  its  mem- 
bers, and  that  the  president  of  the  council  decides  in 
case  of  a  tie  vote.^  Its  meetings  finally  are  public* 
and  its  members  receive  no  salary.^ 
\  The  powers  and  duties  of  this  body  relate  in  the 
main  to  the  affairs  of  the  department.  It  does,  how- 
ever, have  a  few  powers  relative  to  matters  which  are 
general  in  character  or  to  those  of  the  communes  within 
the  department.  The  law  which  fixes  its  powers  and 
duties  is  in  form  an  exception  to  the  general  rule 
adopted  upon  the  continent  for  the  determination  of 
the  share  of  the  localities  in  the  work  of  administration. 
Nowhere  in  it  do  we  find  a  general  grant  of  the  powers 
of  local  government  to  the  general  council.  On  the 
contrary,  the  law  enumerates  the  cases  in  which  the 
general  council  may  act  in  the  domains  of  both  local 
and  general  administration.  But  in  the  domain  of 
local  administration  the  enumerated  powers  embrace 
such  a  wide  range  of  subjects  that  what  is  in 
form  an  exception  is  not  so  in  reality.  For  the  law 
puts  into  the  hands  of  the  general  council  the  control 
of  all  department  property,  finances,  and  taxes,  of  high- 
ways except  the  state  roads,  department  public  works 
of  all  kinds,  public  charity  so  far  as  that  is  a  branch  of 

'  Ibid.,  art.  23.         ^  Ibid,,  art.  25.         ^  Ibid.,  art.  30.  '  Ibid.,  art.  75. 

'  Ibid,,  art.  24.         ^  j^^^^  ^rt.  26.         « Ibid.,  art.  28. 


THE  FRENCH  SYSTEM.  279 

public  administration,  the  apportionment  of  the  quota, 
which  the  department  has  to  pay  of  the  direct  state 
taxes,  among  the  various  distiicts  of  the  department, 
the  determination  of  election  districts,  and  finally  gives 
to  the  general  council  quite  a  large  supervision  over 
the  administration  of  the  communes  within  the  depart- 
ment.* ^  It  will  be  seen  from  this  enumeration  that,  so 
far  as  the  administration  of  affairs  affecting  the  depart- 
ment interests  alone  is  concerned,  the  general  council 
has  about  as  wide  powers  as  if  the  law  had  simply 
granted  to  the  general  council,  as  the  communes  act  of 
1884  has  granted  to  the  communes,  the  general  power 
of  local  government.  Finally  the  enumeration  con- 
tains instances  of  the  grant  of  powers  which  relate  not 
to  the  department  administi'ation  but  to  the  general 
state  administration,  as  well  as  instances  of  supervisory 
powers  over  the  administration  of  the  communes 
within  the  department.  But  the  general  council  to 
which  these  wide  powers  are  granted  has  been  subjected 
to  quite  an  important  administrative  control.  In  one 
or  two  instances,  it  is  true,  the  law  has  provided  for  a 
special  legislative  control,  in  that  it  says  that  if  the 
general  council  wishes  to  exceed  the  limits  of  the 
taxing  power  which  have  been  fixed  by  the  general 
budgetary  law  that  is  passed  annually,  or  of  the  borrow- 
ing power,  as  that  is  fixed  by  the  law  governing  the 
department  administration,  a  special  law  will  be  neces- 
sary. These  are  however  the  only  instances  in  which 
the  law  has  made  express  mention  of  any  application 
for  legislative  authorization  and  the  very  mention  of 
the  fact  would  seem  to  indicate  that  such  a  practice  is 
quite  unusual  in  Prance.     There  are,  however,  many 

*  L.  Aug.  10,  1871,  arts.  37  and  46. 


28o  LOCAL   ADMINISTRATION. 

instances  enumerated  in  the  law  in  which  the  action  of 
the  general  council,  in  order  to  be  valid,  needs  the 
approval  of  the  central  administration.  '  Thus  where 
the  general  council  desires  to  sell  or  change  the  use  of 
buildings  which  are  used  for  the  purposes  of  general 
state  administration,  as  e,  g.  court  houses,  normal  schools, 
prefects'  offices,  prisons,  or  garrison  buildings  of  the 
gendarmerie  (police),  which  all  belong  to  the  depart- 
ment corporation,  it  is  necessary  that  the  resolution  of 
the  general  council  ordering  such  sale  or  change  of  use 
receive  the  approval  of  the  central  administration^ 
which  is  generally  given  by  a  decree  of  the  President 
of  the  republic*  Again  the  resolutions  of  the  general  . 
council,  deciding  what  the  department  shall  pay  of  the 
expense  of  public  works  constructed  by  the  central 
administration  but  of  peculiar  advantage  to  the  de- 
partment, and  as  to  the  imposition  or  increase  by  the 
communes  of  octroi  taxes,  need  central  administrative 
approval,  which  is  usually  given  in  the  same  w-ay.^ 
Finally  all  powers  granted  to  the  council  by  laws 
other  than  the  law  of  August  10,  1871,  are  subject 
to  the  same  central  approval.  While  in  all  these- 
cases  the  central  administratioti  has  the  right  to 
veto  the  resolution  of  the  general  council  on  the  ground  ^ 
that  it  is  unwise,  still  the  resolution  ^of  the  general^ 
council  is  valid  if  the  central  administration  does  not^ 
exercise  this  right  of  veto.  In  certain  rare  cases  the  . 
resolutions  of  the  general  council  need,  before  they  are 
valid  and  capable  of  execution,  the  express  approval  of- 
the  central  administration.  The  most  important  of 
these  is  the  budget.  Though  the  general  council  has 
in  a  general  way  control  over  the  appropriations  of  the 

'  L.  Aug.  lo,  1871,  art.  48.  '  Ibid. 


THE  FRENCH  SYSTEM.  281 

department,  still  the  budget  may  not  be  executed  until 
it  has  been  expressly  approved  by  a  decree  of  the 
President  of  the  republic.  A  The  purpose  of  this  pro- 
vision is  to  offer  a  means  of  preventing  the  general 
council  from  neglecting  to  provide  for  the  expenses 
vrhich  have  been  imposed  by  law  upon  the  department, 
^.  e.  department  charges  as  they  vrbuld  be  called  in  the 
United  States.  If  the  general  council  should  so  neg- 
lect or  refuse,  the  President  of  the  republic  has  the 
right,  when  the  budget  is  presented  to  him,  to  insert  in 
it  the  necessary  appropriations  and  to  provide  for  the 
levying  of  a  special  tax  if  that  is  necessary.  These 
obligatory  expenses  or  department  charges  are  those 
necessitated  by  the  management  of  those  services  for 
which  the  law  makes  it  the  duty  of  the  general  council 
to  provide.  They  are  contained  in  article  60  of  the 
law  of  August  10,  1871 ;  and  among  them  may  be 
mentioned  the  provision  of  the  necessary  buildings  for 
the  officers  in  the  department,  e,  g,  the  prefect,  the 
under-prefect,  the  department  board  of  education, 
which  is  a  council  of  advice  to  the  prefect,  the  garrison 
buildings  of  the  gendarmeriej  the  court  houses,  etc., 
etc.  It  seems,  however,  that  the  President  dan  make 
no  changes  in  the  budget  other  thait  to  make  provision 
for  such  expenses.  Of  course  if  the  President  finds  on 
examining  the  budget  that  the  e^neral  council  has 
levied  taxes  or  has  resolved  to  borrow  money  in  excess 
of  the  limits  imposed  by  the  law  he  may  annul  the 
decision  or  resolution  thus  violating  the  law,  on  the 
ground  that  the  general  council  has  exceeded  its  juris- 
diction. In  fact  the  President  may  annul  any  resolu- 
tion of  the  general  council  which  is  in  excess  of  its 
powers.     But  the  decree  of  the  President  thus  annul- 


282  LOCAL  ADMLNLSTRATION. 

ling  the  resolution  of  the  general  council  is  not  really 
a  veto  of  its  act,  but  is  simply  a  formal  statement  that 
it  has  overstepped  the  bounds  of  its  competence  and 
that  its  action  is  therefore  invalid.  If  the  ultimate 
decision  as  to  the  validity  of  the  acts  of  the  general 
council  lay  in  the  hands  of  the  President  of  the  repub-t^ 
lie  this  central  control  might  degenerate  into  an  abso- 
lute veto  of  all  the  acts  of  the  general  council..  But  it 
would  seem  in  accordance  with  the  general  principles 
of  the  French  administrative  law  that  an  appeal  may 
be  taken  from  the  decision  of  the  President  to  the 
highest  of  the  administrative  courts,  viz,  the  council 
of  state,  which  has  the  right  to  declare  the  act  of  the 
President  null  and  void  in  case  it  should  deem  that  he 
had  declared  not  within  its  competence  a  decision  of 
the  general  council  which  really  was  within  its  com- 
petence.^ Thus  the  final  decision  as  to  the  jurisdiction 
or  competence  of  the  general  council  is  made  by  the 
administrative  courts  and  not  by  the  active  administra- 
tion itself. 

From  this  slight  review  of  the  powers  and  duties  of 
the  general  council  and  of  its  relation  to  the  central 
administration  and  government  it  will  be  seen  that  the 
initiation  of  almost  all  measures  affecting  the  purely  x 
local  affairs  of  the  department  is  in  the  hands  of  the  | 
general  council  whose  decisions  may,  in  case  it  exceeds  * 
the  powers  granted  to  it  by  the  law,  be  annulled  by 
the  central  administration,  subject  to  the  control  of  the 
administrative  courts.     The  general  council  may  not, 
however,  make  such  use  of  its  powers  as  to  neglect  the 

^  See  on  this  point  decisions  of  the  council  of  state  of  Nov.  19,  1866,  reported 
in  Dalloz,  Recueil  P^riodique,  1866,  Part  III.,  106;  also  Aug.  8,  1872,  Ibid^ 
1872,  Part  III.,  49  ;  Nov.  19,  1880,  Ibid,  1880,  Part  III.,  34. 


THE  FRENCH  SYSTEM.  283 

duties  which  have  been  imposed  upon  it  by  the  law, 
and  where  the  central  administration  is  interested,  as 
well  as  the  department,  a  power  of  control  is  given  to 
the  central  administration  over  the  acts  of  the  general 
council  by  means  of  which  it  may  annul  them  on  the 
ground  of  their  inexpediency,  in  which  case  there  is 
no  appeal  to  the  administrative  courts.  The  statement 
which  is  sometimes  made  that  the  central  government 
has  an  absolute  veto  over  the  acts  of  the  general  coun- 
cil is  therefore  not  correct.  On  the  contrary  the  gen- 
eral council  has  really  more  control  over  the  affairs  of 
the  department  than  has  the  county  authority  over  the 
affairs  of  the  county  in  the  United  States  or  even  in 
England. .'  The  great  difference  between  the  American  / 
and  the  French  system  is  that  while  we  give  very  few 
powers  to  the  county  corporation  and  make  it  neces- 
sary for  the  people  of  the  county  to  have  continual 
resort  to  the  legislature  for  the  grant  of  some  special 
power  whose  exercise  is  necessary  to  their  welfare,  but 
seldom  resort  to  any  administrative  control  over  the 
acts  of  the  county  authority,  the  French  prefer  to  grant 
to  the  department  authority  very  wide  local  powers 
but  subject  their  exercise  to  a  central  administrative 
control,  in  order  to  provide  some  means  to  prevent  the 
general  council  from  exceeding  its  powers  and  from 
acting  in  such  a  way  as  to  prejudice  the  interests  of 
the  state  at  large,   i 

IV. — The  district. 

Each  department  is  divided  into  arrondissements  or 
districts,  in  each  of  which  are  placed  an  under-prefect 
and  a  district  council^    The  under-prefect  is^appointed 

'  L.  2%pluvi6se  an  VIII,  art.  8. 


284  LOCAL   ADMINISTRATION. 

and  dismissed  by  the  President  of  the  republic,  and, 
like  the  prefect,  is  a  professional  officer.  He  is  the 
subordinate  of  the  prefect,  his  main  duties  being  to 
carry  out  in  the  district  the  orders  which  he  may  re- 
ceive from  the  prefect,  though  in  some  cases  the  law 
grants  him  discretionary  powers/  There  has  been 
some  talk  of  abolishing  this  office  altogether  on  the 
ground  of  its  uselessness,  but  two  reasons  have  so  far 
prevented  this  from  being  done.  One  of  them  is  that 
the  office  of  under-prefect  is  valuable  as  a  means  of 
educating  men  for  the  position  of  prefect.  The  other, 
more  of  a  practical  political  character,  is  that  the  office 
is  valuable  as  a  means  of  patronage  to  the  central  gov- 
ernment.  The  council  of  the  district  is  elected  in  the 
same  manner  as  the  general  council  of  the  department.^ 
Its  functions  are,  however,  quite  unimportant  and  re- 
late only  to  the  central  administration,  as  the  district, 
not  being  a  municipal  corporation,^  has  really  no 
affairs  of  its  own  to  attend  to.  The  most  important 
function  of  the  council  of  the  district  is  to  apportion  .> 
among  the  communes  in  the  district  the  quota  of  the 
direct  apportioned  taxes  of  the  central  government 
which  has  been  apportioned  to  it  by  the  general 
council.4 

Both  the  general  council  and  the  council  of  the  dis- 
trict are  regarded  as  councils  of  advice  to  the  central 
government,  which  is  often  obliged  by  law  to  ask  their 
advice  on  matters  of  general  administration  affecting 
at  the  same  time  the  interests  of  either  the  department 
or  the  district,  though,  in  accordance  with  the  French 

'  E.  g.  see  decree  of  April  13,  1861  and  law  of  May  4,  1864. 

8  L.  July  30,  1874. 

'  L.  May  10,  1838. 

*  L.  May  10,  1838,  arts.  40,  43,  45-7. 


THE  FRENCH  SYSTEM,  285 

rule  to  which  allusion  has  been  made,  it  is  never  ob- 
liged to  follow  the  advice  so  given/  In  addition  to 
giving  its  advice  when  asked,  both  the  general  council . 
and  the  council  of  the  district  have  the  right  to  express 
their  wishes  to  the  central  administration  in  regard  to 
matters  of  peculiar  interest  to  the  section  which  they 
represent,  but  care  is  taken  to  prevent  this  power  from 
degenerating  into  a  mere  expression  of  political  views, 
as  it  is  expressly  provided  in  the  law  that  expressions 
of  the  general  or  district  council  on  political  matters 
are  beyond  its  competence,  and  may  be  declared  null 
and  void  by  the  central  administration.^ 

V, —  The  commune, 

1.  History.— l^elow  the  department  district  and  canton 
we  find  the  commune  as  the  lowest  administrative  unit. 
The  commune  is  either  rural  or  urban,  but  the  French- 
law  makes  no  formal  distinction  in  organization  between 
the  two,  both  being  governed  by  the  same  law,  viz,  the 
law  of  April  5,  1884.  \  While  the  department  is  an 
artificial  creation  of  the  revolutionary  period,  the  com- 
mune is  a  natural  growth.  Before  the  revolution  we 
find  that  there  were,  as  a  result  of  social  and  political 
conditions,  two  kinds  of  local  communities  in  France, 
viz,  the  urban  communes  and  the  rural  communes. i(  In 
the  former  were  an  officer,  called  by  different  names 
but  performing  for  the  most  part  executive  functions, 
and  a  deliberative  council.  In  the  rural  communes, 
and  even  in  some  of  the  cities,  a  general  meeting  of  the 
inhabitants  was  often  found  together  with  a  series  of 
executive  officers.^  \  A  decree  of  1702  established  in 

^  L.  Aug.  10,  1871,  art.  50  ;  L.  May  10,  1838,  art.  4. 
'  L.  Aug.  10,  1871,  art.  51  ;  L.  May  10,  1838,  art.  44. 
'  Cf.  Dareste  de  la  Chavanne,  op.  cit.,  I.,  201. 


286  LOCAL  ADMINLSTRATION. 

each  of  these  rural  communes  an  officer  called  a  syndic, 
who  was  to  act  to  a  large  extent  under  the  supervision 
of  the  intendant  of  the  generality  or  province  in  which 
the  commune  was  situated/ y'  The  acts  of  all  these 
authorities  were  subject,  just  before  the  revolution,  to 
very  strict  central  control,  which  was  one  of  the  results 
of  the  administrative  centralization  of  the  absolute 
monarchy.  In  1789  the  constituent  assembly  decided 
to  efface  all  distinction  in  administrative  organization 
between  the  rural  and  the  urban  districls^^  and  provided 
for  the  formation  of  about  44,000  communes.^  Dif- 
ferent experiments  at  organization  were  made  in  the 
period  between  1790  and  the  year  "VIII  or  1800 
when  the  Napoleonic  legislation  was  adopted.  By  this 
legislation  there  were  placed  in  each  commune  a 
mayor  and  a  municipal  council,'*  the  former  attending 
to  executive  business,  both  that  relating  to  the  com- 
mune, which  was  a  municipal  corporation,  and  that  af- 
fecting the  state  as  a  whole,  and  the  latter  attending 
simply  to  local  business.  By  this  Napoleonic  legislar 
tion,  both  the  mayor  and  the  members  of  the  municipal 
council  wer^  appointed  and  could  be  removed  by  the 
central  administration,  while  the  decisions  of  the  mu- 
nicipal council,  even  though  they  affected  simply  the 
local  affairs  of  the  commune,  were  in  all  cases  subject 
to  the  approval  of  the  central  administration.^  Since 
the  overthrow  of  the  empire  there  has  been  an  almost 
continuous  tendency  to  decentralize  this  extremely  cen- 
tralized system.  In  1831  the  municipal  council  became 
elective,^  and  by  a  gradual  process  the  mayor  has  be- 

'  Aucoc,  op.  cit.,  I.,  170.  *  L.  28  pluvidse^  an  VIII. 

'  L.  Dec.  22,  1789 — Jan.  8,  1790,  art.  7.       ^  Ducrocq,  op.  cit.,  I. ,217  et  seg- 

'Aucoc,  op.  cit.^  I.,  171.  '  L.  March  24,  1831. 


THE  FRENCH  SYSTEM.  287 

come  elected  by  the  municipal  council  in  all  the  com- 
munes of  France.^  But  up  to  about  1884  no  actual 
power  of  decision  was  given  to  the  municipal  council, 
whose  resolutions  were  in  most  cases  subject  to  central 
administrative  approval.^  The  law  of  April  5,  1884, 
has  made  a  most  radical  change  in  this  respect  by  pro- 
viding that  the  decisions  of  the  municipal  council  are 
absolutely  final  except  in  those  cases  in  which  the  law 
has  specially  provided  for  central  administrative  ap- 
proval.'^  \ 

2.  The  mayor, — In  each  commune  at  the  present 
time  are  to  be  found  a  mayor  and  several  deputies  who 
are  to  assist  him  in  the  performance  of  his  duties,  all 
elected  by  the  municipal  council.  In  both  cases  the 
choice  of  the  council  is  limited  to  its  members. ;  They 
serve  for  the  term  of  the  council,  but  may  be  suspended 
by  the  prefect  of  the  department  for  one  month,  by  the 
minister  of  the  interior  for  three  months,  and  may  be 
removed  by  the  President  of  the  republic.  Removal 
makes  the  person  removed  ineligible  for  the  period  of 
one  year.*  Further,  the  prefect  has  quite  a  large  con- 
trol over  the  mayor  in  that  the  law  provides  that  if  the 
mayor  refuses  to  do  an  act  which  he  is  obliged  by  law 
to  do,  the  prefect  may  step  in  and,  after  demand  made 
to  the  mayor,  proceed  to  do  the  act  himself  or  may 
have  the  act  done  by  a  special  appointee.^  The  mayor 
and  his  deputies  are  unsalaried  and  are  not  profes- 
sional officers  like  the  prefect.  Their  official  expenses 
are  to  be  paid  however.^ 

*  Boeuf,  Droit  Administraiif,  276  citing  L.  March  28,  1882. 
'  Ducrocq,  op.  cit.^  I.,  219  et  seq. 

*  Boeuf,  op.  cit.,  265. 

*  L.  April  5,  1884,  arts.  75-86.  *  Ibid.,  art.  85.  «  Ibid.,  art.  74. 


288  LOCAL  ADMINISTRATION. 

Like  the  prefect,  the  mayor  is  at  the  same  time  the 
agent  of  the  central  administration  in  the  commune 
and  is  the  representative  and  the  executive  of  the  com- 
munal municipal  corporation.  As  an  officer  of  the  cen- 
tral administration  he  is  in  most  cases  under  the 
supervision  of  the  prefect.  Among  his  duties  as  such 
central  officer  may  be  mentioned  his  duty  to  keep  a 
register  of  vital  statistics.  As  the  French  law  expresses 
it,  he  is  an  officer  of  the  etat  civil.  As  such  he  also 
solemnizes  all  marriages.^  He  is  also  an  officer  of  v^hat 
is  known  as  the  judicial  police  and,  as  such,  has  the 
power  to  file  informations  in  purely  petty  offences  and 
may  act  as  public  prosecutor  in  the  smaller  places.^  He 
has  to  publish  and  execute  all  the  laws  and  decrees 
within  the  commune,  makes  up  the  election  lists,  the 
census  tables  for  the  recruiting  of  the  army,  publishes 
the  assessment  rolls,  etc,^  etc}  Finally  the  mayor  han 
a  large  power  of  local  police.  He  has  quite  a  large 
power  of  ordinance,  a  power  which,  like  the  similar 
power  of  the  prefect,  is  always  based  upon  some  ex- 
press provision,  of  law.  The  power  of  ordinance 
granted  by  the  statutes  is,  however,  quite  a  general  one. 
He  has  the  right  to  issue  such  ordinances  as  maybe  neces- 
sary to  maintain  good  order,  public  security  and  health. 
He  has  also  a  large  power  of  issuing  orders  of  individual 
and  not  general  application,  as  e,  g,  to  fix  the  building 
line  for  particular  edifices,  to  grant  building  permits, 
to  remove  nuisances,  and  so  on.-*  All  such  ordinances 
and  orders  are  sanctioned  b/  the  penal  code,^  which 

^  Boeuf,  op.  cit.,  281. 

'  Code d^ Instruction  Criminelle,  arts,  ii,  48-50,  and  53. 

*  Boeuf,  op.  cit.,  287  ;  Ducrocq,  op,  cif.,  I;,  197. 

■*  L.  April  5,  1884,  art.  97  ;  Boeuf,  op.  cit.  289  et  seq. 

*  Art.  471,  sec.  15. 


THE  FRENCH  SYSTEM,  289 

punishes  the  violation  of  all  legal  ordinances  and 
orders  by  a  fine.  An  instance  of  the  control  which  the 
prefect  has  over  the  acts  of  the  mayor  when  the  latter 
is  acting  as  an  officer  of  the  general  state  administra- 
tion, is  to  be  found  in  the  case  of  these  ordinances  and 
orders  which  may  be  repealed  by  the  prefect  within  a/"^ 
month  after  their  issue.^ 

\  As  the  executive  officer  of  the  communal  municipal  cor- 
poration the  mayqr_liMJLhe^appointmenti)f^  of  the  ^ 
communal  officers,'^  the  only  important(exceptions  being 
found  in  the  case  of  the  local  constabulary  who  are,  to  a 
large  extent,  central  officers  and  under  central  control, 
the  teachers,  the  forest  guards,  and  the  communal  treas- 
urer. Further  the  mayor  is  to  attend  to  the  detailed 
administration  of  air  local  property  and  is  to  supervise 
the  different  administrative  services  which  are  attended 
to  by  the  commune.  Thus  in  the  financial  administra- 
tion of  the  commune  the  mayor  draws  up  the  budget 
of  receipts  and  expenses  of  the  commune,  orders  all 
expenses  to  be  paid,  has  the  detailed  management  of 
the  revenue  and  property  of  the  commune,  executes 
its  contracts  and  supervises  its  accounts  and  its  public 
institutions.^  But  in  all  these  matters  it  must  be 
remembered  that  the  mayor  is  simply  to  execute  the/^\ 
decisions  of  the  municipal  council,  which  has  the  final 
determination  of  all  matters  of  communal  interest. 

3.  TTie  municipal  council,— The  municipal  council 
is  elected  by  universal  manhood  suffrage.  Electors 
must  have  resided  for  six  months  Vithin  the  commune 
or  have  paid  direct  taxes  there.  Electors  must  be  regis- 
tered in  order  to  be  able  to  vote/     The  rules  in  re- 

*  L.  April  5,  1884,  art.  95.  *  L.  April  5,  1884,  art.  90. 

*/Hd.,  art.  102.  '*L.  April  5,  1884,  art.  14. 

19 


290  LOrAZ '  ADMINISTRA  TION. 

gard  to  eligibility  are  similar  to  those  in  force  for  the 
general  council  of  the  department/     The  term  of  office 

^<i)  is  four  years.^    The  council  has  four  ordinary  sessions- 
each  year,  but  extraordinary  sessions  may  be  called  at 

y^any  time.^  The  meetings  of  the  council  are  generally 
^  public.  The  mayor  presides  at  all  meetings  of  the 
council  except  when  his  accounts  are  being  examined. 
As  a  rule  a  majority  of  the  mera^beiis-^eaTiistitutes  a 
quorum.  Finally  the  counciliDQay  be  suspended  for  a 
month  by  the  prefect ;  and  may  be  dissolved  by  the 
President  of  the  republic. 

The  duties  of  the  municipal  council  relate  almoat\ 
exclusively  to  the  local  affairs  of  the  commune,  their  1 
general  duties  being  so  few  in  number  and  so  unimport- 1 
ant  in  character  as  not  to  deserve  special  notice.  In 
the  legal  provisions  governing  the  powers  of  the  munici- 
pal council  we  find  a  good  example  of  the  continental 
method  of  regulating  the  participation  of  the  localities 
in  the  work  of  administration.  The  law  of  1884  (the 
municipal  code  of  the  present  time)  simply  says  that 
the  municipal  council  shall  govern  by  its  decisions  the 
affairs  of  the  commune.  In  order,  however,  to  prevent 
the  municipal  council  from  being  extravagant  or  acting 
unwisely,  article  68  of  the  law  provides  that  in  certain 
enumerated  cases  the  approval  of  some  central  author- 
ity, as  a  general  rule  the  prefect,  shall  be  necessary,  be- 
fore the  resolutions  of  the  counciPare  of  force.  In 
general  this  approval  of  the  central  administration  is 
necessary  for  the  sale  or  long  lease  of  communal  prop- 
erty, for  the  undertaking  of  expensive  public  works, 
for  the  change  of  use  of  buildings  used  for  general  ad- 

'  Ibid.,  art.  31.  ^  Ibid.,  art.  41. 

^  Ibid.,  art.  47. 


THE  FRENCH  SYSTEM.  291 

ministrative  purposes,  for  the  regulation,  laying  out  or 
closing  of  streets,  for  the  levy  of  taxes  above  certain 
limits,  and  for  the  borrowing  of  money  beyond  a 
certain  amount,  and  the  imposition  of  octroi  taxes,  i.  e. 
indirect  taxes  on  objects  consumed  within  the  cities. 
Finally  the  budget  of  the  commune  must  be  submitted 
to  the  central  administration,  which  must  approve  it 
before  it  can  be  executed.^  The  purpose  of  submitting 
the  budget  to  the  central  administration  is  to  afford 
it  an  opportunity  to  see  if  the  municipal  council  has 
made  appropriation  for  the  obligatory  expenses  made 
necessary  by  law,  and  to  prevent  the  council  from 
being  extravagant.  If  the  budget  does  not  provide 
for  obligatory  expenses,  levies  taxes  or  borrows  money 
beyond  certain  limits,  or  provides  for  the  payment  of 
the  current  expenses  of  the  commune  from  loans  or 
extraordinary  revenue,  the  central  administration  may 
make  changes  in  the  budget  so  as  to  make  it  conform 
to  the  provisions  of  law  or  to  what  the  central  admin- 
istration regards  as  proper.  Otherwise  the  central 
administration  may  make  no  alterations  in  the  budget 
as  voted  by  the  council.^ 

Finally,  in  order  to  prevent  the  municipal  council 
from  overstepping  the  bounds  of  its  competence  as  an 
authority  for  the  purposes  of  purely  local  administra- 
tion and  from  assuming  functions  of  a  central  character, 
(  it  is  provided  that  the  central  administration  may  de- 
clare any  act  of  the  municipal  council  outside  of  its 
jurisdiction  to  be  void.-  In  such  case  the  municipal 
council  or  any  one  interested  has  the  right  to  appeal 
from  the  decision,  declaring  the  act  of  the  municipal 
council  void,  to  the  administrative  courts,  which  thus 

*  L.  April  5,  1884,  art.  145. 


292  LOCAL  ADMINISTRATION, 

have  the  power  of  determining  finally  the  question  of 
local  jurisdiction/ 

It  should  be  added  finally  that  the  municipal  coun- 
cil is  regarded  as  a  council  of  advice  to  the  central 
government,  which  in  certain  cases  is  obliged  to  con- 
sult it  before  proceeding  to  act.  The  council  may 
further,  just  as  may  the  general  council  of  the  depart- 
ment, express  its  wishes  in  regard  to  public  matters, 
provided  it  does  not  make  use  of  this  power  to  create 
a  political  disturbance.^ 

VL — General  characteristics  of  the    French  system  of  local 
administration. 

1.  General  grant  of  local  power, — The  French  law 
is  not  nearly  so  specialized  as  is  the  law  in  the  United 
States  and  England  governing  the  powers  of  the  local 
authorities.  Much  larger  powers  are  granted  to  the 
localities  by  the  legislature  in  France  than  in  the 
United  States  or  England.  Thus  a  French  city  may 
adopt  such  institutions  of  local  concern  as  it  may  see 
fit  without  being  obliged,  as  is  so  often  the  case  in  the 
United  States,  to  appeal  to  the  legislature  for  power. 
It  may,  in  accordance  with  the  provisions  of  the  general 
law  governing  the  powers  of  communes,  and  on  account 
of  the  general  grant  of  local  administrative  power  to  the 
communes,  establish  municipal  gas-works,  or  operate 
local  tramways,  though  no  special  mention  is  made  in 
the  law  of  any  such  powers. 

2.  Central  adminisPrative  control, — On  account  of 
the  large  powers  granted  by  the  legislature  to  the 
French  local  municipal  corporations  it  has  been  thought 
necessary  to  provide  a  central  administrative  control 

'  Ibid.,  art.  67.  '  Ibid.,  arts.  61  and  72. 


THE  FRENCH  SYSTEM.  293 

over  their  actions.  This  central  control  is  exercised 
with  three  objects  in  view.  In  the  first  place,  since 
all  the  local  corporations  or  local  officers  are  agents  for 
the  central  administrative  services,  the  central  adminis- 
tration has  the  right  to  force  the  localities  or  local 
officers  to  act  in  such  a  way  that  matters  of  a  general '' 
character  placed  in  their  charge  will  not  suffer  by  their  i 
negligence  or  carelessness,  zin  the  second  place  this 
central  administrative  control  is  so  formed  that  by  its 
means  the  central  administration  may  prevent  any  of 
the  local  corporations  from  so  making  use  of  their 
local  powers  as  to  encroach  upon  what  is  recognized  as 
the  sphere  of  central  administration.  In  order,  how- 
ever, to  prevent  the  central  administration  from  so 
making  use  of  its  supervisory  powers  as  to  crush  out 
all  local  administration,  the  local  corporations  or  per- 
sons interested  may  appeal  from  the  acts  of  supervision 
of  the  central  administration  to  the  administrative 
courts,  which  thus  have  the  power  of  delimiting  finally 
the  sphere  of  local  administration.  4  In  the  third  place 
the  central  administrative  control  is  so  formed  as  to 
permit  the  central  administration  through  its  exercise 
to  prevent  the  localities  from  extravagance  and  unwise 
financial  administration.  In  this  last  matter  the  cen- 
tral administrative  co^trol  is  supplemented  by  a  cen- 
tral legislative  control ;  and  it  may  be  added  that  this 
is  the  only  instance  in  the  French  system  of  a  legislSL- 
tive  control  like  the  one  exercised  by  the  United  States 
commonwealth  legislatures  through  special  and  local 
legislation. 

Finally  it  is  to  be  noticed  that  the  system  outlined 
above  does  not  apply  to  Paris  and  the  Department  of 
the  Seine,  or  to  Lyons  and  the  Department  of  the 


294  LOCAL  ADMINISTRATION. 

Rhone,  which  have  a  special  organization  rather  more 
subject  to  central  administrative  control  than  the 
system  outlined. 

3.  Professional  chardcter  of  the  local  officers. — The 
officers  who  attend  to  the  detailed  work  of  administra- 
jcion  are  for  the  most  part  professional  in  character. 
The  only  important  exceptions  to  this  rule  are  to  be 
found  in  the  case  of  the  mayor  and  his  deputies,  who, 
it  will  be  remembered,  are  unsalaried.  As  a  rule  the 
.unpaid  officers  in  the  French  system  are  simply  the 
(r  ^members  of  the  various  deliberative  assemblies,  such  as 
the  general  council  and  the  municipal  council,  whose 
duty  is  to  lay  down  general  rules  for  the  conduct  of 
the  administration  of  local  matters,  especially  the 
matter  of  local  finances.  The  administrative  officers 
i  who  attend  to  the  detailed  work  of  administration  are, 
for  the  most  part,  salaried,  devote  their  whole  time  to 
the  public  work,  and  are  to  act  in  all  cases  where  the 
general  welfare  of  the  country  is  concerned  in  accord- 
ance with  instructions  issued  to  them  from  the  central 
administrative  authorities.  In  many  cases  stringent 
qualifications  of  capacity  are  required.  This  is  espe- 
cially true  of  the  municipal  civil  service. 


CHAPTER  VII. 

LOCAL    ADMINISTRATION  IN  PRUSSIA. 

/. — History.  | 

1.  Conditions  in  1807. — -Tlie  present  form  of  local 
government  in  Prussia  was  fixed  in  1807.  The  Prussia 
of  the  time  previous  to  1807  was  feudal  rather  than 
modern.  The  collapse  of  feudal  Prussia  at  the  time 
of  the  French  invasion  in  1806  was  so  sudden  and  so 
complete  as  to  prove  beyond  peradventure  that  the 
magnificent  fabric  reared  with  so  much  pains  by  the 
great  Prussian  kings  of  the  eighteenth  century  rested 
on  most  insecure  foundations.*  The  (administrative  sys- 
tem which  had  come  down  from  the  time  of  Frederick 
William  I  was  bureaucratic  to  the  last  degree.  The 
result  of  such  a  system  was  that  the  people  partici- 
pated hardly  at  all  in  the  administration  or  even  in  the 
government,  and  naturally  not  only  had  lost  all  politi- 
<}al  capacity,  but  also  had  come  to  regard  the  govern- 
ment either  with  indifference  or  with  absolute  hatred. 
The  social  conditions  of  the  Prussian  people  also  had 
been  such  as  to  favor  one  class  at  the  expense  of  the 
others  and  at  the  same  time  to  impoverish  the  coun- 
try as  a  whole.  The  distinctions  of  class  had  been  so 
fixed  as  almost  to  divide  the  people  into  castes,  and 
artificial  barriers  placed  about  the  freedom  of  trade 

^StQ&Pol.  Set.   Qu„  IV.,  650. 
295 


296  LOCAL  ADMINISTRATLON, 

and  labor  in  the  interest  of  the  richer  classes  had  pre- 
vented all  classes  alike  from  making  the  best  use  of 
their  opportunities. 

2.  Ttie  Stein- Hardenherg  Reforms, — After  the  fall 
of  Prussia,  Baron  Stein  was  made  head  of  the  adminis- 
tration and  during  the  one  year  of  service,  from  which 
he  was  finally  driven  by  the  influence  of  Napoleon,  was 
the  director  of  the  policy  of  Prussia  and  may  well  be 
regarded  as  the  founder  of  the  Prussia  of  to-day. 
Eecognizing  the  defects  of  the  Prussian  system,  he  for- 
mulated and  published  his  plan  of  government ;  ^and 
although  unable  during  his  short  term  of  service  to 
secure  the  adoption  of  this  plan,  he  left  to  his  succes- 
sors a  model  of  administrative  reform  in  his  great 
municipal  corporations  act  of  1808/  Besides  this, 
Stein  was  able  to  abolish  serfdom,  to  make  it  possible 
for  those  not  of  noble  blood  to  acquire  and  hold  land,^ 
and  to  introduce  important  reforms  in  the  general 
administrative  system.^'  Stein's  concrete  model  of  an 
administrative  system  was  to  be  found  in  the  English 
system  as  then  existing.*    ,But  his  idea  of  granting 

*  What  Stein's  ideas  of  government  were  may  be  seen  from  the  famous  docu- 
ment which  the  Germans  have  christened  Stein's  "  political  testament."  This 
document  was  the  circular  which  Stein  sent  to  the  officers  of  the  administration 
when  he  bade  them  farewell  on  the  occasion  of  his  expulsion  from  Prussia  at 
the  instance  of  Napoleon.  The  reforms  which  he  advocated  therein  were  :lthe 
abolition  of  hereditary  magistracy,  very  common  in  some  parts  of  Prussia,*^nd 
the  transfer  of  all  judicial  and  police  functions  to  officers  appointed  by  the 
king  ;^the  formation  of  a  national  legislature  ;  ^nd  the  establishment  of  not 
only  the  right  but  of  the  duty  of  all  property-owning  classes  to  participate  both 
in  the  legislation  and  in  the  administration  of  the  state.  This  last  principle  (of 
obligatory  service)  was  realized  in  Stein's  municipal  corporations  act  of  1808. 
Cf.  Bornhak,  Geschichte  des  Preussischen  Verwaltungsrecht^  III.,  4,  where 
a  portion  of  the  text  of  the  "  testament  "  is  to  be  found. 

2  Edict,  October  9,  1807. 

'  Ordinance,  December  26,  1808. 

*  Meier,  Reform  der  Verwaltungsorganisation.,  240 


LOCAL  ADMINISTRATION  IN  PRUSSIA,      297 

to  the  nobility  large  local  powers,  to  be  exercised 
under  central  control  so  as  to  prevent  the  abuse  of 
the  powers  granted,  was  not  adopted,  x  The  failure  of 
Stein's  plans  brought  Hardenberg  to  the  front  in 
1810.  Hardenberg's  ideas  were  quite  different  from 
those  of  Stein.  Hardenberg  felt  that  before  many 
privileges  of  local  ^elf-government  could  be  granted  to 
the  people,  the  poorer  classes  in  the  community  must 
be  released  from  their  economic  dependence  upon  the 
richer  classes.^  He  had  the  experience  of  the  French 
before  him  and  believed  that  the  first  thing  to  do  was 
to  establish  a  strongly  centralized  administration  like 
the  French,  which  should  be  directed  by  men  of  liberal 
ideas.^  Hardenberg  was  not,  however,  able  to  over- 
throw what  Stein  had  already  established.  \As  a  part 
of  his  reforms  Stein  had  divided  the  country  into 
government  districts  {Regierungsbezirhe)^  at  the  head 
of  each  of  which  was  placed  a  board  called  the  "  gov- 
ernment "  {Reqierund)^  which  attended  to  almost  all 
central  administrative  matters  that  in  the  nature  of 
things  could  be  attended  to  in  the  localities.  Purely 
local  matters,  i.  e,  matters  recognized  as  belonging  to 
the  sphere  of  local  autonomy,  which  were  quite  un- 
important, were  left  in  the  charge  of  the  cities  and  the 
rural  communities,  which  were  to  act  under  the  super- 
vision of  these  "  governments."  Hardenberg  suffered 
this  organization  to  remain,  but,  in  order  to  increase 
his  influence  over  it,  he  put  every  two  or  three  districts 
under  a  provincial  governor  who  was  to  represent  the 
central  government  in  the  province.'*     Below  the  dis- 

*  Bornhak,  op.  cit.^  III.,  6;  Meier,  op.  cit„  135,  170-172  ;  and  Seeley,  Life 
and  Times  of  Stein ^  passim.  »    ^  Ordinance,  Dec.  26,  1808. 

'  Meier,  op.  cit.,  169.  "*  Ordinance,  April  30,  1815. 


298'  LOCAL  ADMLNISTRATION. 

^  tiict  Stein  had  retained  a  historic  Prussian  division,  to 
wit  the  "  circle,"  at  the  head  of  which  was  the  land- 
rath,  who  was  now  made  the  subordinate  of  the  ''  gov- 
ernment."^ All  of  these  authorities — the  governor, 
the  "government,"  and  the  landrath — were  placed 
under  the  direction  of  the  chancellor,  which  last  posi- 
tion Hardenberg  had  created  for  himself.  Most  of  the 
officers  in  this  organization  were  salaried  and  profes- 
sional in  character.  The  system  was  therefore,  as 
before,  a  centralized  bureaucracy.  But  it  was  better 
organized  than  before,  and  it  was  directed  by  a  man  of 
advanced  liberal  ideas,  who  made  use  of  the  vast 
power  he  possessed  to  further  the  interests  of  the  state 
as  a  whole.  With  this  wonderfully  efficient  instru- 
ment great  progress  was  made  in  carrying  out  the  social 
and  economic  reforms  begun  by  Stein.^ 

3.  Reactionary  ^period  from  1822-1872. — But  be- 
fore the  reform  could  be  completed  Hardenberg  died 
(in  1822)  and  a  reaction  immediately  set  in.  The 
great  landholders,  whose  privileges  had  been  seriously 
diminished  by  what  had  been  accomplished,  came  for- 
ward and  managed  to  persuade  the  king  to  grant  them 
certain  powers  in  the  domain  of  purely  local  govern- 
ment. ^  Local  legislatures  were  formed  in_^  which  the 
landholders  had  almost  complete  controP;  and  the 
attempt  was  made  later  to  form  out  of  delegates  from 
these  local  legislatures  a  national  parliament.*^  This 
attempt  was  frustrated  by  the  revolution  of  1848, 
which  was  largely  a  protest  by  the  commercial  and 
industrial  classes  against  the  monopoly  of  governing 

-.  *^^  Ordinances  of  July  30,  1812,  and  July  30,  1815. 
»  Pol.  Set.  Qu.,  IV.,  655. 
'  L.  June  5,  1823. 
■*  Patent  and  Ordinance  of  Feb.  3,  1847. 


LOCAL  ADMINISTRATION  IN  PRUSSIA       299 

whicli  the  landholders  were  beginning  to  claim.  NThe^ 
result  of  the  revolution  was  the  formation  of  a  consmu- 
tion  ^  in  which  the  suffrage  was  made  to  depend  not 
upon  the  ownership  of  land  but  upon  the  ownership  of 
Any  kind  of  property.  At  first  the  legislature  which 
was  formed  on  this  basis  contained  a  liberal  majority 
which  set  to  work  to  curtail  the  powers  of  the  land- 
owners, 'i'his  led  to  another  reaction,  viz.^  the  con- 
servative reaction  of  1850-60,  during  which  the  entire 
power  of  the  administration  was  prostituted  in  the 
interest  of  the  Conservative  party  and  the  landholders.^ 
This  preying  of  one  class  upon  another,  which  is  s(^ 
characteristic  of  the  internal  history  of  Prussia  from 
1822  to  1860,  was  largely  the  result  of  the  weakness 
of  the  monarchy  during  that  period  and  of  the  intro- 
duction of  the  principle  of  the  parliamentary  responsi- 
bility of  the  ministry  into  a  country  in  which  the 
people  had  not  as  yet  learned  how  to  govern  them- 
selves. It  was  only  natural  therefore  that,  when  the 
monarchy  became  stronger  by  the  accession  of  the  late 
King  William  I,  who  repudiated  the  principle  of  the 
parliamentary  responsibility  of  his  ministers,  this  class 
tyranny  should  cease.  The  great  constitutional  con- 
flict in  Prussia  which  follow^ed  his  accession  to  the 
throne  (1860-4)  showed  the  Prussian  people  that 
they  had  found  their  master,  and  that  the  Crown  in 
a  monarchical  couptry  is  the  natural  arbiter  between 
conflicting  social  classes  and  should  protect  the  weak 
against  the  aggressions  of  the  strong. 

4.  Reform  of  1872. — It  was  seen  that    important 
-changes  must  be  made  in  the  system  of  local  govern- 

'  Promulgated  Jan.  31,  1850. 

'  Pol.  Sci.  Qu.,  IV.,  656-58  ;  Gneist  in  Revue  Gin^rale  du  Droit  et  des  Sciences 
Politiques,  Oct.,  i886  ;  Bornhak,  Geschichte,  etc..  III.,  '^S^'Oi 'iAAX/vij^ c 


300  LOCAL  ADMINISTRATION. 

ment  in  order  to  accustom  the  people  to  exercise  their 
powers  with  moderation  and  with  a  regard  for  the  in- 
terests of  the  minority.  >The  necessary  concrete  meas- 
ures were  sketched  by  Dr.  Gneist  of  the  University  of 
Berlin,  and  one  of  the  greatest  of  modern  public 
lawyers,  in  his  little  book  entitled  Dw  Kreisordnung, 
In  this  work  Dr.  Gneist  referred,  as  had  Stein  before 
him,  to  the  English  system  of  local  administration 
which  they  both  knew  so  well  and  admired  so  much. 
After  a  long  discussion  the  plans  advocated  by  Gneist 
were  for  the  most  part  incorporated  into  the  law  of 
Dec.  13,  1872,  commonly  known  as  the  Kreisordnung, 
The  adoption  of  these  plans  was  largely  due  to  Prince 
Bismarck,  who  believed  strongly  in  local  autonomy 
and  self -administration,  and  who  supported  the  ideas 
advocated  by  Gneist  in  the  face  of  the  opposition  of 
the  general  public  and  of  that  of  his  colleagues  in  the 
ministry  and  the  greater  part  of  the  government 
officials  who  were  loth  to  give  up  any  of  the  powers 
which  they  possessed  in  the  organization  founded  by 
Hardenberg.^  In  addition  to  the  Kreisordming  several 
other  laws  were  passed  in  the  course  of  the  next  ten 
years,  all  either  carrying  the  reform  further,  or  modify- 
ing details  which  experience  had  shown  to  be  faulty. 
X  The  definite  ends  which  this  reform  has  had  in  view 
are: 

First.      The  extension  of  the  sphere  of  local  au- 
tonomy. 

Second.     The  introduction  of  a  judicial  control  over 
the   actions  of  administrative  officers  in  the  hope  of 

'  As  to  the  position  and  the  influence  of  Prince  Bismarck  see  Gneist  in  Revue 
CMdrale,etc.,  Oct.,  1886;  Preussen  im  Bundestag,  IV.,  22,  cited  in  Z*^/.  Sci. 
Qu.,  IV..  661. 


LOCAL  ADMINISTRATION  IN  PRUSSIA.      301 

preventing  a  recurrence  of  the  prostitution  of  the  pow- 
ers of  the  administration  in  the  interest  of  party  or 
social  faction. 

Third.  The  introduction  of  a  non-professional  or  lay 
element  into  the  administration  of  central  as  well  as  of 
local  matters  in  the  hope  of  increasing  the  political 
capacity  of  the  people.^   A 

II. — Provincial  authorities. 

In  accordance  with  continental  ideas  as  to  the  terri- 
torial distribution  of  administrative  functions  two 
spheres  of  administrative  action  are  recognized  by  the 
law :  the  one,  central ;  the  other,  local.  '  For  the  pur- 
poses of  the  central  administration  which  needs  atten- 
tion in  the  localities,  the  country  is  divided  into  admin- 
istrative circumscriptions  called  provinces,  government 
districts,  circles,  etc.^  in  which  are  officers  under  the 
control  of  the  heads  of  the  various  executive  depart- 
ments at  Berlin. 'For  the  purposes  of  local  government 
certain  municipal  or  public  corporations  have  grown 
up  which  have  their  own  officers  and  their  own 
property  separate  and  apart  from  that  of  the  central 
^  government.  At  the  time  of  the  reform  in  many  in- 
stances the  boundaries  of  the  administrative  circum- 
scriptions for  the  purposes  of  central  administration 
were  not  identical  with  those  of  the  various  public 
corporations,  e.  g.  the  boundaries  of  the  administrative 
provinces  were  not  the  same  as  those  of  the  public 
corporations  bearing  the  same  name.  In  most  cases, 
further,  the  authorities  for  the  purposes  of  central  ad- 
ministration were  not  the  same  as  those  of  the  public 
corporations.     The  reform  of  1872  has  endeavored  to 

^  De  Grais,  Handbuch  der  Verfassung  und  Verwaltung,  etc,  1883,  51. 


302  LOCAL  ADMLNLSTRATION. 

simplify  matters.  It  has  in  the  first  place  adopted  the 
old  divisions,  viz.^  the  provinces,  districts,  and  circles, 
but  it  has  added  a  new  division,  viz.^  the  justice  of  the 
peace  division  {Amtshezirlc) ;  in  the  second  place  it  has 
in  almost  all  instances  insisted  upon  the  coincidence  of 
the  boundaries  of  the  corresponding  areas.  Thus  at 
the  present  time  in  almost  all  cases  the  area  of  the  ad- 
ministrative province  is  the  same  as  that  of  the  pro- 
vincial corporation.  In  the  third  place  the  central  and 
local  authorities  within  the  same  area  have  in  most 
cases  been  consolidated.  In  the  province,  however,  the 
attempts  at  such  consolidation  were  unsuccessful. 
^  Therefore  the  provincial  authorities  or  rather  the 
administrative  authorities  in  the  province  must  be 
distinguished  as  Behorden  der  Allegemeineii  Landes- 
verwaltung^  i.  e.  as  authorities  for  central  administra- 
tion, and  as  O^gane  der  Provinzialverbdnde,  i,  e,  as 
authorities  for  local  provincial  administration. 

Among  the  authorities  for  the  general  or  central  ad- 
ministration of  the  country  are  to  be  mentioned : 
'  1.  The  governor  (Oherprdsident). — This  officer  is 
appointed  and  dismissed  by  the  king  at  his  pleasure, 
He  is  a  member  of  what  is  called  the  higher  adminis 
trative  service,^  and  is  thus  a  purely  professional  officer. 
He  is  the  agent  in  the  province  of  the  central  govern 
ment,  i,  e.  of  all  the  executive  departments  at  Berlin ; 
the  permanent  representative  of  the  ministers ;  and 
from  his  decision  as  such  representative  there  is  no 
appeal,  since  the  ministers  are  regarded  as  acting 
through  him.  As  such  agent  he  must  report  to  all  the 
ministers  every  year,  and  execute  any  orders  which 
they  may  send  to  him,  is  entrusted  with  considerable 

^  Infra,  II.,  p.  49. 


LOCAL  ADMINISTRATION  IN  PRUSSIA.      303 

discretion  of  action  in  times  of  extraordinary  danger 
from  war  or  other  causes/  exercises  either  in  first  or 
/v^second,  but  in  all  cases  in  last  instance  very  large 
powers  of  supervision  over  the  actions  of  subordinate 
officers  and  authorities,  as  well  as  over  the  local  ad- 
ministration of  various  important  municipal  corpora- 
tions, such  as  the  province,  the  circle,  and  certain  of 
the  larger  cities,^  and  appoints  the  justices  of  the  peace 
{Amtsvorsteher).^  He  attends  to  the  administration  of 
all  business  which  interests  the  entire  province  or  more 
than  one  government  district.  For  example,  he  issues 
a  long  series  of  police  ordinances  * ;  supervises  the 
churches  ^ ;  transacts  all  business  which  relates  to  an 
entire  army  corps  ^;  acts  as  president  of  a  series  of  I 
provincial  councils  or  boards,  such  as  the  provincial) 
council,  the  provincial  school  board,  and  the  provincial' 
board  of  health.^  ^^ 

2.  The  provincial  council. — Up  to  1875,  when  the 
late  reform  was  introduced  into  the  provincial  adminis- 
tration, the  governor,  himself  a  professional  officer, 
transacted  the  business  of  the  central  government  in 
the  province  unchecked  in  the  performance  of  his 
duties  by  the  control  of  any  popular  authority.  *  But 
one  of  the  main  objects  sought  by  the  reform  was  the 
introduction  of  a  lay  element  into  the  administration 

'  Instruction  of  December  31,  1825  ;  cf.  Stengel,  Organisation  der  PreussU 
schen  Verwaltung,  317,  318. 

^  Allgemeine  Landesverwaltungsgesetz  of  July  30,  1883,  sec.  ip,  hereafter 
cited  SLsA.L.  V.  G.;  Kreisordnung  of  1872,  sec.  177,  hereafter  cited  as  K.  O.j 
Zustandigkeiisgesetz  of  July  26,  1880,  sec.  7,  hereafter  cited  as  Z.  G. 

»  K.  O.,  sees.  56-58.  ,   .. 

*  With  the  consent  of  the  provincial  council,  of  which  later.  A.  L.  V.  G., 
sees.  137,  139. 

5  Loening,  Deutsches  Verwaltungsrecht,  p.  83,  with  authorities  cited, 

« Ibid. 

'  Instruction  of  1825,  sec.  3  ;  A.  L.  V.  G.,  sec.  10. 


304  LOCAL  ADMLNISTRATION. 

of  affairs  affecting  the  country  as  a  whole.  This  end 
was  attained  by  the  formation  of  the  provincial^^uncil. 
This  body  consists  of  the  governor,  as  its  president,  a 
single  councillor  of  a  professional  character,  and  five 
lay  councillors,  citizens  of  the  province,  i,  e.  ordinary 
citizens  without  any  professional  education  and  un- 
salaried. The  professional  councillor  is  appointed  by 
the  minister  of  the  interior,  must  be  qualified  for  the 
hiofher  administrative  service,  and  his  term  of  office  is 
practically  for  life.  The  lay  members  of  the  council 
are  appointed  by  the  provincial  committee — a  popular 
body — ^from  among  the  citizens  of  the  province  eligible 
for  member  of  the  provincial  diet.  Their  term  of 
office  is  six  years.^  In  the  organization  of  this  body,  it 
will  be  noticed,  the  lay  element  predominates.  Pro- 
vision is  made  for  professional  members  in  the  hope 
that  by  reason  of  their  knowledge  and  experience  the 
business  of  the  council  may  be  more  wisely  and  more 
quickly  transacted. 

The  duties  of  the  council  are  of  three  classes.  Jn  the 
first  place  it  exercises  a  control  over  the  actions  of  the 
provincial  governor,  e,  g,  its  consent  is  necessary  for  all 
his  ordinances.^  ^In  the  second  place  it  acts  as  an  in- 
stance of  appeal  from  certain  decisions  of  inferior 
authorities,  such  as  the  district  committee.^  sin  the 
third  place  it  decides  as  an  executive  authority  certain 
administrative  matters  ;  e,  g.  the  number,  time,  and 
duration  of  certain  markets,*  and  questions  relative  to 
the  construction  of  certain  roads.^     Of  these  duties, 

^  A.  L.  V.  G.,  sees.  10-12. 

»  A.  L.  V.  G.,  sec.  137  ;  Z.  G.,  sec.  51. 

3  A.  L.  V.  G.,sec.  121. 

*Z.  G.,  sec.  127. 

^  Stengel,  Organisation  der  Preussischen  Verwaliung^  435. 


LOCAL  ADMINLSTRATLON  IN  FRUSSLA.      305 

those  of  the  first  class  are  by  far  the  most  important, 
as  it  is  through  their  performance  that  a  popular  lay 
control  is  exercised  over  the  bureaucratic  professional 
administration  of  central  matters  in  the  province.  N 

^.1^  The  government  hoard  and  president. — Each  prov- 
ince is  divided  into  from  two  to  six  government  dis- 
tricts. At  the  head  of  each  of  these  districts  is  a  board 
called  the  government  (^JRegierung).  This  is  composed 
exclusively  of  professional  officers,  viz.,  the  president, 
several  division  chiefs,  councillors,  and  assistants.  They 
are  all  appointed  by  the  central  government  at  Berlin 
and,  like  the  governors  of  the  provinces,  belong  to  the 
higher  administrative  service.^ 

The  competence  of  the  governments  originally  (and 
at  th-e  time  of  the  late  reform)  embraced  all  matters  of 
administration  that  could  be  attended  to  at  all  by  terri- 
torially limited  authorities  and  in  so  far  as  special  au- 
thorities had  not  been  established  to  attend  to  them.^ 
This  last  was  not  often  the  case.  Separate  authorities 
had  indeed  been  established  for  the  administration  of 
the  customs,  but  this  was  the  most  important  instance.^ 
X  In  general  all  matters  of  central  administration  attended 
to  in  the  localities  were  attended  to  by  the  governments. 
/They  were  by  far  the  most  important  administrative 
\autborities  in  the  entire  Prussian  system.  \  They  acted 
under  the  direction  of  the  central  authorities  at  Berlin 
or  that  of  the  representatives  of  the  central  authorities 
in  the  provinces,  viz.^  the  provincial  governors.  Finally 
in  addition  to  the  ^actual  administrative  duties  which 
they  performed,  they  exercised  a  control  over  the  vari- 
ous authonties  of  the  central  administration  immedi- 

*  Ordinance  of  Dec.  26,  1808 . 

*  Stengel,  Worterbuch,  etc.,  II.,  972. 


3o6  LOCAL  ADMINISTRATION. 

ately  subordinated  to  them  and  over  the  various  local 
public  corporations. 

With  the  introduction  of  the  reform  measures,  how- 
ever, the  importance  of  the  governments  has  somewhat 
decreased,  owing  to  the  establishment  of  other  more 
popular  authorities  and  to  the  modification  in  their 
own  organization  which  thereby  became  necessary,  vin 
the  "  district  committee"  a  lay  authority  was  established 
in  the  government  district  ^  similar  to  the  provincial 
council  in  the  province.  This  innovation  reduced  the 
government  so  much  in  importance  that  it  was  felt 
advisable  to  abolish  its  most  important  division,  that  of 
the  interior,  which  had  charge  of  the  police  administra- 
tion (^.  e.  the  issue  of  police  ordinances  and  orders)  and 
of  the  supervision  of  the  inferior  authorities  both  of 
the  central  and  of  the  local  administration.  All  of 
these  duties  were  assigned  either  to  the  government 
president,  acting  alone  or  under  the  control  of  the  dis- 
trict committee,  or  to  the  district  committee.  For  all 
other  matters  within  the  competence  of  the  government 
the  old  organization  is  the  same  as  before :  i,  e.  in 
school,  tax,  and  church  matters  the  government  still 
acts  as  a  board  of  which  the  government  president  is 
the  presiding  officer,    h 

f  The  government  president  thus  occupies  a  double 
position.  '  He  is  either  an  officer  with  power  of  inde- 
pendent action,  or*he  is  the  presiding  officer  of  a  board 
in  which  lies  the  real  power  of  decision.  But  wherever 
he  has  independent  powers  of  action,  he  is  subjejited 
to  the  control  of  the  lay  district  conimittee,  of  which 
he  is  at  the  same  time  the  president.  The  result  is  an 
extremely  complicated  organization — which,  however,. 

'  A.  L.  V.  G..  sec.  153. 


LOCAL  ADMINISTRATION  IN  PRUSSIA,      307 

answers  the  purposes  sought  by  the  reform.  The 
matters  left  in  the  competence  of  the  existing  divisions 
of  the  government  are  matters  which  are  not  thought 
to  be  proper  subjects  for  popular  administration.  The 
manaofement  of  the  domains  of  the  state,  of  the  central 
taxes  and  of  education  (^.  e,  of  its  pedagogical  side) 
and  the  control  over  the  churches  are  not  regarded  as 
subjects  in  which  a  popular  control  would  lead  to  ad- 
vantageous results ;  but  the  management  of  police 
matters  and  the  supervision  of  the  subordinate  authori- 
ties, particularly  of  the  local  corporations,  are  matters 
in  which  it  is  particularly  desirable  that  the  people 
should  have  some  influence. 

4.\  The  district  committee. — This  body  is  formed  of 
the  government  president  as  its  presiding  officer,  and 
six  councillors.'  Two  of  these  are  professional  in  char- 
acter, are  appointpd  for  IjfA  by  the  kin^,  and  must  be 
qualified,  the  one  for  the  judicial  service,  the  other  for 
the  higher  administrative  service.  One  of  these  pro- 
fessional councillors  is,  at  the  time  of  his  appointment, 
designated  as  the  deputy  of  the  government  president 
in  his  capacity  as  the  presiding  officer  of  the  commit- 
tee ;  he  is  called  the  administrative  court  director,  and 
presides  over  the  deliberations  of  the  committee  when 
it  acts  as  an  administrative  court.^  The  other  four 
members  are  lay  members  and  are  elected  by  the  pro- 
vincial committee  from  among  the  inhabitants  of  the 
district,  not  professional  officers.  It  will  be  noticed 
that  the  character  of  this  committee  is  the  same  as  that 
of  the  provincial  council.  It  is  distinctively  a  lay  au- 
thority, although  it  has  a  sufficient  number  of  profes- 

»  A.  L.  v.  G.,  sec.  28.  '  Infra,  II.,  p.  253. 


•308  LOCAL  ADMINISTRATION. 

sional  members  to  ensure  the  rapid  and  wise  discharge 
of  business. 

XWhile  the  district  committee  in  the  district  sub- 
serves the  same  purpose  as  the  provincial  council  in  the 
province,  its  competence  is  more  extended.  Its  main 
function  is  to  exercise  a  control  over  the  actions  of  the 
government  president,  so  that  the  administration  may 
be  made  popular  in  character.^  Thus  all  police  ordi- 
nances, the  issue  of  which  is  the  chief  function  of  the 
government  president  when  acting  alone,  need  the 
consent  of  the  district  committee."^  But  this  committee 
has  positive  functions  also.  In  many  cases  it  acts  in 
first  instance ;  e.  g,  it  supervises  inferior  authorities 
and  municipal  corporations,  especially  the  cities.  It 
has  also  an  appellate  jurisdiction.  This  is  of  two  kinds, 
one  administrative  and  the  other  judicial.  In  what 
cases  it  acts  as  an  administrative  authority,  and  in  what 
cases  it  acts  as  a  judicial  body,  is  decided  by  the  stat- 
utes.^ The  general  principle  would  seem  to  be  that 
I  where  rights  of  individuals  are  involved,  the  committee 
\  acts  as  a  judicial  body.  In  its  double  capacity  of  au- 
thority and  court,  its  jurisdiction  is  very  large  ;  and  its 
establishment  has  done  much  to  weaken  the  import- 
ance of  the  "government,"  which  was  absolutely  pro- 
fessional in  character,  and  to  establish  the  desired  lay 
control  over  the  administration.  ^ 

bi^  The  provincial  diet. — Matters  of  purely  local  inter- 
est to  the  province — matters  which  the  law  recognizes 
as  falling  within  the  domain  of  provincial  autonomy — 
are  attended  to  by  a  second  class  of  authorities,  viz.^ 
the    organs  of    the  provincial  municipal  corporation 

'  Z.  G.,  sec.  13.  2  A.  L.  v.  G.,  sec.  139. 

'Stengel,  Organisation^  etc.,  330,  415, 


LOCAL  ADMINISTRATION  IN  PRUSSIA.      309 

{Organe  des  ProvinziaVverbandes).  These  authorities 
are  the  direct  successors  of  the  old  feudal  estates  of 
the  provinces  which  have  come  down  from  the  middle 
ages.  \The  original  Stein-Hardenberg  legislation  did 
little  to  develop  them  ;  it  was  felt  that  the  feudal  ele- 
ments were  too  strong  in  them  to  permit  of  any  healthy- 
development.  After  Hardenberg's  death  they  received 
increased  powers.  They  were  so  organized,  however, 
as  to  put  their  entire  control  into  the  hands  of  the 
large  owners  of  land.  The  main  purpose  of  the  re- 
form movement  has  been  so  to  reorganize  them  that 
they  might  be  entrusted  with  a  large  part  of  the  work 
which  was  then  being  done  by  the  central  administra- 
tion and  which  was  susceptible  of  decentralization. 
The  main  point  in  this  reorganization  is  the  provision 
for  the  representation  of  all  classes  of  the  people 
/  within  the  province.  The  old  system  of  representa- 
tion was  completely  done  away  with  and  the  present 
provincial  diet  was  established.^  ^  This  is  composed  of 
representatives  from  each  of  the  circles  into  which  the 
province  is  divided,  the  number ,  of  representatives  de- 
pending upon  the  population  of  the  circles.^  These 
representatives  are  elected  by  the  circle  diets  of  the 
rural  circles  and  the  municipal  authorities  of  the  urban 
circles,  i.  e.  cities  of  25^000  or  more  inhabitants.^  This 
method  of  election  assures  the  larger  cities  a  fair  repre- 
sentation in  the  provincial  diet ;  and  the  method  of 
electing  members  of  the  diets  of  the  rural  circles,  is 
such  as  to  guarantee  to  the  smaller  cities  and  the  other 
social  interests  a  voice  in  the  selection  of  the  members 
of  these  diets  and,  as  a  result,  representation  in  the 

•  Provinzial-Ordnung  oi  June  29,  1875,  hereafter  cited  as  P.  O. 
^P.  O.,  sees.  9,  10.  * Ibid.y  sees.  14,  15. 


310  LOCAL  ADMINISTRATION. 

provincial  diet  also.  The  term  of  office  of  tlie  mem- 
bers of  the  provincial  diet  is  six  years ;  and  the  quali- 
fications of  eligibility  are  German  citizenship,  residence 
in  the  province  or  the  possession  of  landed  property 
therein  for  at  least  a  year,  good  moral  character  and 
solvency/ 

■The  diet  is  called  together  by  the  Crown  once  in  two 
years  and  as  many  other  times  as  its  business  makes  its 
meetings  necessary.^  The  governor  of  the  province 
attends  to  this  matter  for  the  Crown  and,  as  the  royal 
representative,  opens  its  sessions  and  has  the  right  to 
speak  therein.^ 

The  functions  of  this  body  relate  almost  exclusively 
to  the  purely  local  matters  of  the  provincial  adminis- 
tration. It  decides  what  local  services  shall  be  carried 
on  by  the  provincial  corporation  in  addition  to  those 
which  have  been  positively  devolved  upon  it  by  law, 
and  it  raises  the  funds  necessary  for  the  support  of  the 
provincial  administration.*  v^ 

Its  decisions,  says  Prof.  Gneist,  relate  to  the  construction 
and  maintenance  of  roads  ;  the  granting  of  moneys  for  the 
construction  and  maintenance  of  other  means  of  public  communi- 
cations ;  agricultural  improvements  ;  the  maintenance  of  state 
alms-houses,  lunatic  asylums,  asylums  for  the  deaf  and  dumb  and 
blind  and  others,  artistic  collections,  museums  and  other  like 
institutions.  .  .  .  The  provincial  diet  votes  the  provincial 
budget,  creates  salaried  provincial  offices  and  deliberates  upon 
provincial  by-laws.^       k 

These  by-laws,  it  must  be  added,  simply  regulate 
minor  points  in  the  organization  of  the  province  which 
have  not  been  already  fixed  by  law,  such  as  the  details 
regarding  the  elections.     They  must  be  approved  by 

'^  Ibid.,  sec.  17.         ^  Ibid.,  sec.  25.         ^Ibid.,^c.  26.     '^ Ibid.,  sees.  34-44. 
*  Revue  GM&ale  du  Droit  et  des  Sciences  Politiques,  Oct.,  1886,  262. 


{ 


LOCAL  ADMINISTRA  TION  IN  PR  USSIA.      3 1  j 

the  Crown.^  In  addition  to  the  duties  imposed  upon 
the  province  by  law,  the  diet  may  assume  such  other 
-duties  as  it  sees  fit  which  are  not  in  direct  opposition 
to  the  purposes  of  provincial  organization.^  Finally 
the  diet  elects  all  the  officers  who  attend  to  the  local- 
administration  of  the  province.^ 

From  this  description  of  its  duties  it  will  be  seent 
that  the  provincial  diet  determines  largely  what  the 
<jharacter  of  provincial  administration  shall  be.  The 
law,  of  course,  imposes  certain  duties  upon  the  province 
which  it  must  perform  and  which  it  may  be  compelled 
to  perform,  but  the  law  does  not  limit  its  competence. 
On  the  contrary  the  law  allows  it  to  do  almost  any- 
thing which  falls  within  the  scope  of  what  is  recog- 
nized as  proper  for  provincial  administration.*  Under 
the  new  system  which  imposes  upon  the  province  much 
of  the  work  formerly  done  by  the  central  administra- 
tion, and  leaves  it  free  to  do  as  much  more  purely  local 
work  as  it  will,  the  widest  opportunity  is  given  for 
development  in  accordance  with  particular  local  needs. 

6.  KThe  provincial  committee. — This  is  the  executive!  • 
authority  for  the  local  administration  of  the  province. 
The  number  of  its  members  varies,  according  to  the 
by-laws  of  the  different  provinces,  between  seven  and 
fourteen.5  (They  are  elected  by  the  diet  from  among 
those  citizens"o?~  the  empire  who  are  eligible  to  the 
provincial  diet.^  The  term  of  office  is  six  years,  half 
of  the  members  retiring  every  three  years. ^  The  mem- 
bers of  this  committee  (and  the  same  rule  applies  to 
the  members  of  the  provincial  di^t)  receive  no  pay  or 

1  p.  O.,  sec.  119.                                '  '  P.  O.,  sec.  46. 

^  Loaning,  Deutsches  Verwaltungsrecht^  2ig.  *  Ibid. ,  sec.  47. 

*  P.  O.,  sec.  41.  '  Hid.,  sec.  48. 

*  Stengel,  Organisation^  etc.,  289,  note  ;  P.  O.,  sec.  37. 


312  LOCAL  ADMINISTRATION, 

salary  of  any  kind  for  the  performance  of  their  duties : 
the  province  only  pays  their  necessary  expenses.^  X 

^  The  duties  of  this  committee  are  to  carry  on  the  ad- 
ministration of  the  province  in  accordance  with  the 
general  principles  laid  down  by  the  provincial  diet  in 
its  resolutions.^  ( Its  subordinate  executive  officer,  on 
whom  the  detailed  or  current  administration  falls,  is 
the  provincial  director  (in  some  cases  there  is  a  board 
instead  of  a  director),  who  is  elected  by  the  diet  and 
must  be  approved  by  the  king,  and  who  is  a  salaried, 
officer.^  His  position  is  that  of  a  superintendent  of 
the  entire  provincial  civil  service  for  purely  local  mat- 
ters. He  has  no  discretionary  powers;  the  provincial 
committee  is  the  discretionary  executive  of  tlie  prov- 
ince, and  the  director  simply  carries  out  its  decisions. 
Service  as  provincial  officer,  it  should  be  said,  is  never 
obligatory.  The  original  draft  of  the  bill  which  after- 
wards became  the  provincial  law  made  this  provincial 
organization  less  complicated  than  it  now  is,  providing 
that  the  provincial  committee  should  also  perform  the 
duties  which  have  been  devolved  upon  the  provincial 
council ;  but  the  Conservative  party  in  the  House  of 
Lords,  whose  interests  were  at  stake,  felt  that  this  plan 
would  not  allow  them  sufficient  independence  in  the 
management  of  purely  provincial  affairs,  and  insisted 
upon  a  complete  separation  of  the  general  and  local 
functions  of  administration  in  the  province.  The 
result  was  the  formation  of  the  separate  authorities 
described  above.* 

^Before  closing  this  account  of  the  administration  of 
the  province,  it  should  be  noticed  that  a  large  part  of 

*  Ibid.,  sec.  loo.  ^  jbid,^  sec.  45.  *  Ibid.,  sec.  87. 

*  Stengel,  Organisation,  etc.,  150. 


LOCAL  ADMINISTRA  TLON  LN  PR  USSIA.      313 

the  revenue  of  the  province  comes  from  subsidies 
which  were  given  by  the  central  government  to  the 
province  at  the  time  of  the  reorganization  of  the  pro- 
vincial administration.^  The  purposes  for  which  such 
subsidies  shall  be  spent  are  designated  in  the  laws.  In 
order,  however,  to  permit  the  provinces  to  develop  in 
accordance  with  their  particular  needs,  the  law  pro- 
vides that  the  provinces  may  raise  other  money  by 
levying  taxes.*  These  taxes  shall  consist  of  lump  sums 
of  money,  which  the  circles  forming  parts  of  the  prov- 
ince are  to  pay  into  the  provincial  treasury,  and  whose 
amount  is  to  be  fixed  in  accordance  with  the  amount 
of  direct  taxes  paid  to  the  central  government  by  the 
people  residing  within  the  circles.^  '  The  circle  and  not 
the  individual  is  the  taxpayer  in  the  provincial  system 
of  finance,  just  as  the  circle  and  not  the  individual  is 
the  voter  for  representatives  to  the  provincial  diet.  In 
order,  however,  to  prevent  the  provincial  diet  from 
overburdening  the  circles,  it  is  provided  that  where 
the  province  shall  demand  from  the  circle  more  than 
fifty  per  cent,  of  the  amount  of  central  taxes  levied  in 
the  circle,  the  consent  of  the  supervisory  authority  of 
the  central  government  (the  ministers  of  the  interior 
and  finance)  shall  be  obtained.^  x  The  making  of  loans 
is  subject  to  the  same  limitation.  This  is  the  means 
which  has  all  along  been  adopted  to  restrict  the  actions 
of  the  provincial  diet,  viz.^  a  central  administrative 
control.  Thus  the  by-laws  and  resolutions  which  the 
provincial  diet  may  adopt,  filling  up  details  in  the  law, 
often  require  for  their  validity  either  the  approval  of  the 
Crown  or  that  of  one  of  the  ministers.*  •  Again,  if  any 

*.P.  O.,  sec.  105.  ^ Ibid.,  sec.  119. 

•  Ibid.^  sec.  107.  ■*  Cf.  supra,  p.  31 1. 


314  LOCAL   ADMINISTRATION. 

provincial  authority  endeavors  to  do  anything  which, 
is  outside  of  its  competence,  the  supervisory  officer, 
mz.j  the  governor,  has  the  right  to  suspend  its  action. 
Finally  the  Crown  may  dissolve  the  diet,  and  the  gov- 
ernor may  open  an  appropriation  and  levy  the  neces- 
sary taxes  for  all  provincial  charges  for  which  the  diet 
has  neglected  to  make  provision.^  The  provincial 
authorities  may  usually  appeal  from  the  decision  of  the 
supervisory  authority  to  the  superior  administrative 
court  at  Berlin.  The  central  control  is  thus  prevented 
from  becoming  arbitrary. 7 

///. —  The  circle  authorities. 

While  the  law  recognizes,  in  the  case  of  the  circle 
as  in  the  case  of  the  province,  that  there  is  a  sphere  of 
local  and  a  sphere  of  central  administrative  action 
which  are  quite  distinct,  it  still  has  not  seen  fit  to 
provide  separate  authorities  for  each  of  these  different 
spheres  of  action,  but  on  the  contrary  has  conferred  on 
the  s^me  authorities  the  right  to  act  in  both  spheres. 
But  when  these  authorities  act  in  purely  local  matters, 
they  are  not  subjected  to  the  same  strict  control  as 
when  they  act  for  the  central  administration.  The 
work  of  the  circle,  further,  is  essentially  local  in 
character,  while  the  work  of  the  province  affects 
rather  the  country  as  a  whole.  The  law  governing  the 
organization  of  the  circle  authorities  was  the  model  on 
which  was  formed  the  law  governing  the  provincial 
administration.  There  is,  therefore,  the  same  combina- 
tion of  professional  and  lay  elements  which  has  already 
been  pointed  out  in  the  foregoing  description  of  the 
provincial  authorities.    The  only  difference  is  that  one 

*  p.  O.,  sees.  121,  and  122.  , 


LOCAL  ADMINLSTRATION  LN  PRUSSIA.      315 

set  of  authorities  perforins  all  the  duties  in  the  circle 
which  two  sets  of  authorities  perform  in  the  province. 
The  circle  authorities  are  the  landrath,  the  circle 
committee,  the  justice  of  the  peace,  and  the  circle  diet.. 
{  1.  The  Landrath. — The  landrath  is  the  agent  of 
the  central  administration,  discharging  in  the  adminis- 
trative  dislEict  of  the  circle  about  the  same  duties  that 
are  performed  in  the  province  by  the  governor,  and  in 
the  government  district  by  the  government  and  the 
government  president.  He  is  the  subordinate  of  the  gov- 
ernment president.  He  is  at  the  same  time  the  execu- 
tive for  the  current  local  administration  of  the  circle. 
In  this  capacity  he  is  the  subordinate  of  the  circle  com- 
mittee, of  which  he  is  also  president.^  He  is  a  profes- 
sional officer,  and  must  be  qualified  for  the  higher 
administrative  service,  and  is  appointed  by  the  Crown.^ 
2.  The  circle  committee, — The  circle  committee  also 
is  an  agent  as  well  for  the  central  as  for  the  local 
administration  of  the  circle.^  It  occupies  in  the  ad- 
ministrative district  of  the  circle  the  same  position  that 
the  district  committee  occupies  in  the  government 
district,  and  the  provincial  council  in  the  province. 
That  is,  it  has  certain  executive  functions  to  perform, 
and  exercises  a  lay  control  over  the  actions  of  the 
professional  landrath.  In  so  far  it  acts  as  an  authority 
of  the  central  administration.*  As  local  agent,  it  is  the 
discretionary  executive  of  the  circle.  It  conducts  the 
administration  of  the  circle  in  accordance  with  the 
resolutions  of  the  circle  diet.^  The  circle  committee  is 
a  distinctively  lay  authority.  It  is  composed  of  the 
landrath,  as  its  president,  and  of  six  members  chosen 

^  K.  O.,  sec.  76.  ^  Ibid,,  sec.  74.  '  Ibid.,  sec.  130. 

*  Stengel,  Organisation,  etc.,  339,  392.  ^  K.  O.,  sec.  134. 


3i6  LOCAL   ADMINISTRATION. 

by  the  circle  diet  from  among  the  members  of  the 
circle/  The  term  of  service  is  six  years,^  and  the  office 
is  obligatory  in  that  a  fine  is  imposed  for  refusal  to 
serve  for  at  least  half  the  regular  term.^  As  an 
authority  for  the  central  administration  it  has  under 
its  direction  the  various  justices  of  the  peace.  As  the 
local  executive  authority  of  the  circle  it  has  under  its 
direction  the  landrath  and  all  other  circle  officers.* 

The  circle  committee  was  modelled  largely  upon  the 
English  petty  and  special  sessions  of  the  peace.  It 
performs  in  Prussia  many  of  the  duties,  especially 
those  of  a  police  character,  which  its  English  prototype 
performed  in  England.  Thus  it  is  the  general  rural 
licensing  authority,  is  a  highway  authority,  and  acts  as 
the  supervisory  instance  over  the  actions  of  the 
Prussian  justice  of  the  peace — which  office  is  likewise 
constructed  upon  the  English  model/^ 

3.  The  justice  of  the  peace, — The  office  of  justice  of 
the  peace  is  one  of  the  most  important  established 
by  the  reform.  One  of  the  chief  ends  of  the  reform 
movement  was  to  do  away  with  the  institution  of 
hereditary  magistracy,  which  existed  especially  in  the 
eastern  provinces  of  the  kingdom,  and  under  which  the 
local  police  was  administered  by  the  large  landholders. 
The  purpose  of  the  reform  was  to  abolish  this,  almost 
the  last  relic  of  feudalism,  and  to  put  the  local  police 
into  the  hands  of  officers  appointed  by  the  Crown, — 
who,  at  the  same  time,  should  not  be  professional  in 
character,  but,  like  the  English  justices  of  the  peace,' 
should  be  chosen  from  society  at  large,  should  be 
obliged  to  serve,  and  should  receive  no  salary  for  the 

^  Ibid.,  sec.  131.  •  ^ .Ibid.,  sec.  8. 

*  Ibid.,  sec.  133.  *•  Ibid.,  sees.  134,  137. 


LOCAL  ADMINLSTRATION  IN  PRUSSIA.      317 

discharge  of  these  public  duties.     The  office  was  to  be 
honorary.     As  Dr.  Gneist  says : 

The  principal  end  of  the  law  [/.  ^.,the  circle  law  of  1872]  was, 
after  the  analogy  of  the  English  justices  of  the  peace,  to  attract 
into  the  service  of  the  state  the  well-to-do  and  intelligent  classes. 
With  this  end  in  view  the  territory  was  divided  into  5658  small 
divisions,  each  of  which  embraced  a  number  of  manors  and  town- 
ships with  an  average  population  of  1500  inhabitants.  In  each  of 
these  divisions  are  a  justice  of  the  peace  and  a  deputy,  who  are 
appointed  in  the  name  of  the  Crown  by  the  governor  of  the 
province  from  a  list  drawn  up  and  presented  to  him  by  the  circle 
diet.  .  .  .  The  duties  of  the  justice  of  the  peace  consist 
principally  in  the  administration  of  the  police  of  his  division.  It 
is  he  who  takes  police  measures  against  vagrants,  administers  poor 
relief,  prevents  violations  of  the  law  ;  he  interposes  in  disputes 
between  masters  and  servants  ;  he  watches  over  the  application  pf 
the  building,  health,  and  game  laws  and  the  laws  passed  to  pre- 
serve order  in  hotels  and  public  places  ;  he  supervises  the  mainte- 
nance and  the  police  of  highways.  His  orders  are  sanctioned  by 
short  terms  of  imprisonment  ;  while  he  can,  in  necessary  cases, 
order  provisional  arrest  without  encroaching  upon  the  ordinary 
jurisdiction  of  the  criminal  courts.  He  supervises  the  daily  action 
of  the  executive  officers  of  the  police  force  and  has  the  right  to 
amend  all  acts  o'f  theirs  which  in  his  judgment  are  inexpedient  or 
incorrect.  .  .  .  The  justice  has  under  his  orders  the  mayors 
of  the  townships  and  the  personnel  of  the  gendarmerie.  He  him- 
self is  not  put  under  the  disciplinary  power  of  the  landrath,  but 
under  that  of  a  sort  of  2^  judicium  parium — the  circle  committee — 
with  a  right  of  appeal  from  their  decision  to  the  courts  of 
justice.' 

This  experiment  seems  to  have  proved  a  success. 
In  the  ten  years  immediately  following  the  introduc- 
tion of  the  reform  there  was  only  one  case  of  the  dis- 
missal of  a  justice  of  the  peace  from  office  for  corrupt 
administration.     Of  course  the  personnel  of  the  justices 

^  Gneist  in  Revue  GM&ale,  etc.,  Oct.,  1886,  252.     See  also  K.  O.,  sees.  48, 
58,  5Q. 


3i8  LOCAL  ADMLNLSTRATLON. 

of  the  peace  must  to  a  large  extent  be  the  same  as  that 
of  the  old  police  system — that  is,  the  larger  landholders 
will  hold  the  offices.  But  there  is  a  great  difference 
between  an  hereditary  and  an  appointed  magistracy, 
even  when  the  class  from  which  the  magistrates  are 
taken  remains  the  same.  The  power  of  appointment 
possessed  by  the  governor  makes  it  possible  to  exclude 
from  the  office  any  person  who  is  notoiiously  actuated 
by  class  motives.  Further  the  control  possessed  by 
the  circle  committee,  which  has  the  right  to  remove  a 
justice  of  the  peace,  and  which  is  not  composed  ex- 
clusively of  representatives  of  the  landholding  classes, 
must  tend  to  restrain  any  justice  of  the  peace  from 
yielding  too  much  to  class  feeling. 

4.  Town  officers. — The  only  other  important  officers 
are  the  Dorfschulzen  or  town-mayors.  Most  of  the 
political  functions  of  local  government  and  also  most 
of  its  important  economical  functions  are  attended  to 
by  the  provincial  and  circle  authorities.  The  rural 
towns  are  therefore  little  more  than  organizations  for 
the  regulation  of  the  purely  prudential  matters  of  an 
agricultural  community ;  such  as  common  pasturage 
and  tillage;  and  for  the  administration  of  a  very  few 
public  services,  such  as  the  most  unimportant  roads,  the 
schools,  and  the  churches.  These  matters  are  attended 
to  by  assemblies,  sometimes  composed  like  the  United 
States  town  meetings,  of  all  the  electors  of  the  towns, 
sometimes  formed  of  representatives  of  the  electors  of 
the  towns.*  These  assemblies  have  the  general  power  of 
controlling  and  regulating  prudential  matters  of  purely 
local  interest.^  The  decisions  of  the  assembly  are 
enforced  by  executive  officers — viz.^  the  village  mayor 

'  Loening,  op.  cit.,  165.  2  jbij,^  169. 


LOCAL  ADMINISTRATLON  IN  PRUSSIA, 


319 


and  two  Schoffen}  During  the  old  feudal  da^^s  before 
the  reform,  these  offices,  like  the  police  offices,  were 
often  hereditary.  Under  the  new  legislation  the 
mayors  and  Schoffen  are  to  be  elected  by  the  town 
assemblies.^  Their  choice,  however,  must  be  approved 
by  the  landrath  ^ ;  for  the  mayors,  besides  being  the 
executive  officers  of  the  towns,  have  the  general  admin- 
istration of  the  police  of  the  state.  As  police  officer 
the  mayor  has  the  right  to  order  temporaiy  arrest  and 
to  impose  small  fines  for  the  violation  of  his  orders.* 
Service  in  this  office  is  obligatory  and  unpaid.^ 

Somewhat  similar  to  the  local  organization  of  the 
town  is  that  of  the  manor.  The  manor  exists  only  in 
those  portions  of  Prussia  which  have  not  as  yet  been 
completely  freed  from  the  influence  of  the  feudal 
regime.^  It  is  little  more  than  a  town  which  belongs 
wholly  to  one  person.  In  the  manor,  in  addition  to 
the  private  rights  which  would  ordinarily  result  from 
the  possession  of  property,  the  lord  has  certain  rights 
and  duties  of  a  semi-political  character.  Thus  he  acts 
as  mayor ;  but  as  mayor  he  is  subject  to  the  control  of 
the  justice  of  the  peace.  As  the  justice  of  the  peace  is 
now  subjected  to  the  control  of  the  circle  committee, 
there  is  no  longer  the  same  danger  as  formerly  that 
these  semi-political  powers  will  be  abused. 

One  of  the  great  obstacles  to  the  development  of  an 
energetic  and  efficient  local  government  in  the  towns 

*  Ibid.,  170, 

'  K.  O.,  sees.  22-24. 

*  The  landrath's  veto,  however,  must  be  approved  by  the  circle  committee— 
a  popular  authority.    K.  O.,  sec.  26. 

*  Ibid. ,  sees.  29,  30. 

^  Ibid.,  sees.  8,  25,  28. 

*  Stengel,  Organisation^  etc.,  234. 


320  LOCAL   ADMINLSTRATLON. 

and  manors  is  that  they  are  frequently  of  such  small 
size  that  they  are  unable  to  bear  the  expense  of  the 
various  local  services,  such  as  roads  and  schools.  To 
obviate  this  trouble,  the  reform  legislation  permits  and 
encourages  the  union  of  towns  and  manors  and  the 
transfer  of  their  functions  to  the  new  corporation  thus 
formed.^  The  new  division  formed  by  such  a  union  is 
often  coterminous  with  the  division  of  the  justice  of 
the  peace  (the  ArrvtsbezirU),  When  such  a  union  is 
accomplished,  there  is  provision  made  for  an  assembly 
for  the  division.  This  is  elected  by  the  local  electors 
in  accordance  with  the  three-class  system  adopted  in 
Prussian  municipal  elections.^  It  should  be  noted  that 
some  sort  of  a  similar  body  exists  in  all  the  divisions  ;  but 
it  never  attains  the  same  importance  in  those  divisions 
to  which  the  duties  of  the  communes  and  manors  have 
not  been  transferred,  since  its  functions  in  such  a  case 
are  simply  to  control  the  police  administration  of  the 
justice  of  the  peace.^ 

5.  The  circle  diet — The  formation  and  the  functions 
of  this  body  are  of  great  importance,  not  only  because 
of  its  influence  in  the  affairs  of  the  circle  itself,  but 
also  because  it  elects  the  members  of  the  provincial  I 
diet  and  because  it  finally  raises  all  the  provincial  taxes.  \ 
Before  describing  the  formation  of  the  circle  diet, 
mention  must  be  made  of  the  fact  that  the  principle  of 
universal  manhood  suffrage  has  never  taken  root  in 
Prussia.  This  is  particularly  true  of  the  system  of 
representation  in  the  local  legislatures  in  both  the  rural 
and  the  urban  districts.     From  time  immemorial  repre- 

'  See  the  new  Landgemeindeordnung  of  1890. 

'  See  Bornhak,  "  Local  Government  in  Prussia,  "^wwa/j  of  American  Academy 
of  Political  and  Social  Science,  III.,  403.      Cf.  Infra,  p.  331. 
*K.  O.,  sees.  48,  50,  51,  52,  53. 


LOCAL  ADMINISTRA  TLON  IN  PR  USSIA.      321 

sentation  has  been  regarded  as  a  right  of  property,  not 
of  men.  The  great  difficulty  has  been  to  assign  a  fair 
representation  to  the  different  kinds  of  property  exist- 
ing in  the  localities.  Up  to  the  time  of  the  late  reform 
the  owners  of  landed  property,  and  especially  the 
owners  of  large  amounts  of  landed  property,  had  been 
able  to  gain  for  themselves  a  disproportionate  share  in 
the  management  of  local  matters.  This  it  has  been 
the  purpose  of  the  reform  to  do  away  with,  but  no 
attempt  has  been  made  to  introduce  the  principle  of 
manhood  suffrage. 

All  cities  of  twenty-five  thousand  inhabitants,  it 
must  be  remembered,  are  excluded  from  the  jurisdic- 
tion of  the  rural  circles  and  form  what  are  termed 
urban  circles.  As  these  urban  circles  are  represented 
according  to  their  population  in  the  provincial  diet, 
moneyed  capital  has  its  representation  in  the  provincial 
diet  independently  of  the  arrangements  provided  for 
the  circle  diets." 

In  the  rural  circles,  which  are  composed  of  the  open 
countiy  and  of  cities  of  less  than  twenty-five  thousand 
inhabitants,  the  circle  diet  is  elected  by  the  members 
of  the  circle  who  possess  the  qualifications  of  local  suf- 
frage.* Members  of  the  rural  circle  are,  in  the  first 
place,  all  physical  persons  who  reside  within  its  boun- 
daries ^ ;  in  the  second  place,  all  physical  persons  who, 
though  not  residing  within  its  boundaries,  own  landed 
property  therein  or  pursue  a  stationary  trade  or  occu- 
pation therein  (these  are  known  as  the  Fot^eTisen  ^) ;  and 
in  the  third  place,  all  juristic  persons  having  their 
domicile  within  the  circle,  including  the  state  if  it  has 
property  in  the  circle.'*     All  of  these  members  of  the 

»K.  O.,  sec.  7.  ^Ibid.,SQC.6.  ^ /did.,  sec.  14.  ^ I6id, 

VOL.  I. — ax 


322  .    LOCAL  ADMINLSTRATION, 

circle  are  formed  into  three  colleges  for  tlie  purpose  of 
electing  the  members  of  the  circle  diet/  and  in  each  of 
these  colleges  the  qualifications  of  the  electors  and  the 
effect  of  their  votes  are  different. 

The  first  college  is  composed  of  all  persons,  including 
juristic  persons,  who  are  members  of  the  circle  and  who 
pay  for  their  landed  property  a  land  and  building  tax 
of  at  least  225  marks  (this  sum  may  be  raised  by  the 
provincial  diet  to  450  or  lowered  to  150  nmrks),  or 
who  pay  a  correspondingly  high  trade  tax  for  a  busi- 
ness carried  on  in  the  open  country.^  Every  German 
citizen  who  falls  mthin  this  category,  who  is  8ui  juris 
and  has  not  been  deprived  of  civil  honors  by  judicial 
sentence,  may  cast  a  vote.  Juristic  persons,  women, 
minors,  and  incapables  may  exercise  their  right  of 
suffrage  through  representatives.^  This  college,  it  will 
be  noticed,  represents  the  owners  of  large  landed 
estates,  since  land  will  naturally  form  the  predominant 
property  element  in  the  rural  circles.  Persons  who 
pay  a  high  trade  tax  are  assimilated  to  the  large  land- 
owners simply  in  order  to  provide  representation  for 
the  various  industries  which  spring  up  in  the  open 
country. 

In  the  second  college  the  electing  body  is  composed, 
first,  of  the  representatives  of  the  rural  towns  who  have 
been  chosen  by  the  assemblies  of  such  towns ;  second, 
of  the  owners  of  manors,  which  are  assimilated  to  towns  ; 
and  third,  of  those  persons  who  pursue  a  trade  in  the 
circle  for  which  they  are  taxed  below  the  rate  which 
would  put  them  in  the  first  college.'^     The  second  col- 

^  Ibid.,  sec.  85. 

*Ibid.,  sec.  86.  This  is  the  middle  rate  of  the  highest  class  in  the  Gewerbesieuer. 

*Ibid.,  sees.  96,  97.  *  K.  O.,  sees.  87,  98. 


LOCAL  ADMINISTRATION  IN  PRUSSIA.      323 

lege,  it  will  be  noticed,  is  intended  to  represent  the 
smaller  owners  of  land,  and  also  the  smaller  tradesmen, 
artisans,  and  manufacturers  who  otherwise  would  not 
be  represented  at  all,  since  ownership  of  agricultural 
land  is  generally  necessary  to  vote  for  members  of  the 
assemblies  of  the  rural  towns.^  The  representation 
given  to  the  owners  of  manors  is  of  course  an  anomaly. 
It  is  due  to  the  fact  that  they  are  obliged  by  law  to 
defray  out  of  their  own  pockets  all  those  expenses  of 
the  manors  which,  were  they  rural  towns,  would  fall 
upon  the  inhabitants.  But  as  the  manors  are  fast  dis- 
appearing this  privilege  is  not  destined  to  have  great 
importance  in  the  future.^ 

The  third  college  is  a  common  session  of  the  muni- 
cipal authorities  of  the  cities  within  the  circle.^  It  is 
therefore  composed  of  the  representatives  of  personal 
property  or  moneyed  capital.  This  statement  perhaps 
requires  some  explanation.  From  the  social  standpoint 
all  city  property,  whether  consisting  of  land,  houses,  or 
what  the  Anglo-American  law  terms  personal  property, 
is  really  to  be  regarded  as  personal  property  or  capital. 
The  owners  treat  it  as  capital,  and  their  interests  are 
those  of  the  capitalistic  class  rather  than  those  of  the 
agricultural  or  rural  land-holding  classes. 

The  members  of  the  circle  diet  to  be  elected  by  these 
three  colleges  are  apportioned  to  the  rural  and  city 
colleges  according  to  population  ;  except  that  the  col- 
lege of  the  cities,  if  there  is  more  than  one  city  in  the 
circle,  may  not  elect  more  than  half  of  the  members  of 
the  circle  diet,  and  if  there  is  only  one  city  in  the  circle, 
then  not  more  than  one  third.     The  other  members  of 

*  Loening,  op.  cit.^  165.  '  Stengel,  Organisation ^  etc.,  236,  note  i. 

3  K.  O.,  sec.  88. 


324  LOCAL  ADMINISTRATION, 

tlie  circle  diet — ^.  e.  the  number  left  after  subtracting 
from  the  total  number  the  number  of  the  city  college 
members — are  to  be  elected  in  equal  proportions  by  the 
other  colleges ;  i,  e,  the  college  of  the  large  landhold- 
ers and  that  of  the  small  landholders  each  elects  one 
half  of  the  remainder.*  The  result  of  such  a  system  of 
representation  is  to  assure  to  all  classes  a  share  of  rep- 
resentation on  both  the  circle  and  the  provincial  diets.' 
The  processes  of  election  differ  considerably  in  each 
college,  and  are  of  so  complicated  and  technical  a  char- 
acter as  to  offer  little  interest  to  the  foreign  student.^ 

The  authority  organized  in  this  peculiar  way  has  to 
perform  for  the  circle  as  a  municipal  corporation  about 
the  same  duties  that  the  provincial  diet  has  to  perform 
for  the  province.  That  is,  it  lays  down  the  general  ^ 
rules  which  shall  be  followed  by  the  circle  officers  in 
their  management  of  the  circle  administration  ;  decides 
what  services  the  circle  shall  undertake ;  and  levies 
the  taxes  necessary  to  defray  the  expenses  of  the  circle 
administration  and  to  pay  to  the  province  the  quota  of 
money  which  the  provincial  diet  has  decided  shall  be 
paid  by  the  circle  for  the  maintenance  of  provincial  in- 
stitutions and  administration.^  The  raising  of  such 
moneys,  it  may  be  said,  is  the  principal  function  of  the 
circle  diet.^  In  the  performance  of  this  duty  the  circle 
diet  does  not  have  any  very  wide  field  of  action.  One 
of  the  things  which  the  cii'cle  law  was  most  careful  to 
do  was  to  take  away  from  the  circle  diets  the  power  to 
introduce  any  new  taxes,  because  these  might  easily 
derange  the  system  of  taxation  adopted  for  the  country 

^  Ibid.,  sec.  89. 

'  Cf.  Pol.  Sci.  Qu.,  v.,  145. 

^  For  a  description  of  them  see  Stengel,  Organisation,  etc.,  244. 

"*  K.  O.,  sees.  115,  116.  *  Ibid.^  sec.  119. 


LOCAL  ADMINISTRATION  IN  PRUSSIA.      325 

at  large.  The  law  has  obliged  the  circle  diet  to  get  its 
revenues  by  adding  percentages  to  the  direct  central 
taxes.*  There  are  several  of  these,  some  upon  land  and 
some  upon  business  and  some  upon  income,  each  tax 
thus  affecting  different  classes  of  property  or  persons. 
As  capital  might  be  especially  important  in  one  circle 
and  landed  property  in  another,  it  was  not  felt  advisa- 
ble by  the  framers  of  the  reform  measures  to  fix  any 
hard  and  fast  rule  which  the  circle  diets  must  follow 
in  fixing  the  rates  at  which  each  different  kind  of  prop- 
erty was  to  be  taxed  for  circle  purposes.  But  at  the 
same  time  it  was  considered  unsafe  to  allow  the  circle 
diets  perfect  freedom  in  the  fixing  of  such  rates,  from 
the  fear  that  in  the  circles  where  any  particular  prop- 
erty interest  was  predominant  the  majority  would  be 
inclined  to  tax  unfairly  the  property  of  the  minority. 
Therefore  the  law  has  laid  down  limits  within  which 
the  circle  diets  may  fix  the  rates  of  the  particular  taxes 
and  beyond  which  they  may  not  go.^  Under  these 
limitations,  taken  together  with  the  careful  provision 
for  a  fair  representation  of  all  the  different  classes  of 
property  upon  the  circle  diet,  it  is  felt  that  the  tempta- 
tion to  local  tyranny  through  the  exercise  of  the  taxing 
power  is  to  a  large  extent  removed.  As  regards  the 
total  amount  of  taxes  to  be  raised  by  any  circle,  the 
law  has  imposed  one  limitation  in  the  interest  of  eco- 
nomical administration.  It  provides  that  if  a  circle 
diet  wishes  to  impose  a  tax  which  is  more  than  fifty 
per  cent,  of  the  entire  central  tax  levied  in  the  circle, 
it  must  obtain  the  consent  of  the  proper  supervisory 
authority  of  the  central  government  (in  this  case  the 
ministers  of  finance  and  of  the  interior  at  Berlin).^ 

^  I6id.,  sec,  10.  ^  linef.  *I6id.,  sec.  lj6. 


326  LOCAL  ADMLNLSTRATION. 

In  addition  to  these  powers  of  taxation,  the  circle 
diets  have  a  series  of  functions  to  perform,  some  of 
which  are  imposed  upon  them  by  law,  some  of  which 
they  may  assume  voluntarily.  The  circle  law  of  1872, 
in  sections  115  and  116,  would  seem  to  indicate  that 
the  circle  diet  may  establish  such  institutions  as  in  its 
judgment  will  benefit  the  circle,  and  which,  it  must  be 
added,  are  among  the  general  objects  for  which  the  circle 
organization  has  been  formed.^  For  instance :  it  could 
not  establish  a  new  system  of  courts,  since  that  is  not 
a  matter  of  local  concern  ;  but  it  might  establish  new 
institutions  of  an  educational  or  charitable  character, 
since  they  would  be  of  particular  benefit  to  the  circle 
and  are  within  the  general  scope  of  its  competence.  In 
the  establishment  of  such  new  institutions,  however, 
the  diets  must  not  overburden  the  circles  with  debts  or 
with  heavy  taxes.  To  prevent  them  from  so  doing, 
the  law  has  reserved  to  the  central  administrative 
authorities  large  powers  of  control.  Debts  not  espe- 
cially permitted  by  law  may  not  be  incurred  without 
the  approval  of  these  authorities ;  nor,  as  has  been 
noted,  can  the  circle  diets  impose  taxes  beyond  certain 
limits.^  The  question  naturally  arises :  What  is  the 
use  of  two  bodies  with  functions  so  similar  as  are  those 
of  the  provincial  diet  and  the  circle  diet  ?  Why  could 
not  the  work  of  the  province  as  a  municipal  corporation 
be  transferred  to  the  circle,  and  the  circle  diet  be 
allowed  to  attend  to  all  the  duties  which  are  now  de- 
volved upon  the  province  ?  It  must,  however,  be  re- 
membered that  the  chief  function  of  the  provinces  as 
municipal  corporations  is  to  attend  to  matters  of  a  less 

*  Loening,  op.  cit.^  204  ;  Stengel,  Organisation,  etc.,  25. 
«  K.  O.,  sec.  176. 


LOCAL  ADMINISTRATION  IN  PRUSSIA.      327 

local  character  than  those  which  fall  within  the  sphere 
of  the  circles ;  the  object  of  their  reorganization  in 
their  present  form  was  to  decentralize  the  central 
administration.  Previous  to  the  province  law  of  1875 
and  the  dotation  laws  of  1873  and  1875  a  series  of  in- 
stitutions, such  as  asylums,  were  supported  and  admin- 
istered by  the  central  government,  which,  it  was  felt, 
could  be  better  attended  to  nearer  home.  Therefore  the 
central  government  gave  these  duties  to  the  province. 
It  could  not  well  entrust  them  to  the  circle,  because  it 
was  felt  that  the  institutions  in  question  were  of  too 
important  a  character  to  be  attended  to  by  so  small  a 
district ;  that  the  resources  of  the  circle,  both  in  ad- 
ministrative ability  and  in  money,  would  not  be  suffi- 
cient for  the  adequate  performance  of  these  duties. 
While  the  province  represents  the  central  government 
in  these  matters,  the  circle  represents  the  localities,  and 
is  by  far  the  most  important  of  the  purely  local  munici- 
pal corporations. 

Most  of  the  important  offices  in  the  circle  which  have; 
been  mentioned  are  honorary  and  unsalaried,  and  thel 
acceptance  of  all  these  honorary,  unsalaried  offices  is' 
obligatory.^  That  is,  refusal  to  accept  office  after  an 
election  or  appointment  is  attended,  where  no  legal 
excuse  exists,  by  loss  of  local  suffrage  for  from  three  to 
six  years  and  by  an  increase  of  circle  taxes  of  from 
an  eighth  to  a  quarter.  Among  the  legal  excuses  are 
chronic  sickness,  the  following  of  a  business  which 
necessitates  frequent  or  continuous  absence  from  home, 
the  age  of  sixty  years,  service  as  honorary  officer  within 
the  last  three  years.  This  system  of  coercion  for  hon- 
orary offices,  says  Dr.  Gneist, 

1  K.  O.,  sec.  8. 


328  LOCAL  ADMIN LSTRATION. 

is  applied  without  exception  in  the  reform  legislation  and  had 
before  this  time  been  applied  in  the  municipal  organization  of 
Prussia.  The  people  have  everywhere  accustomed  themselves 
quickly  to  this  constraint.  At  first  it  was  feared  that  it  would  be 
impossible  to  find  competent  persons  to  fill  a  position  entailiYig 
such  a  grave  responsibility  [as  that  of  justice  of  the  peace].  But 
in  1875,  after  the  law  had  been  put  into  operation,  more  than  5000 
justices  and  as  many  deputies  were  found  and  it  was  necessary  to 
fill  only  183  places  with  salaried  officers  {commissar isc he  Amtsvor- 
steher)  who  were  temporarily  appointed  for  those  districts  in  which 
it  had  been  impossible  to  find  the  proper  persons.* 

The  purpose  of  tlie  application  of  the  principle  was' 
to  cultivate  a  greater  public  spirit  and  political  capacity 
among  the  well-to-do  rural  classes  in  the  same  way  thafe 
such  spirit  and  capacity  had,  as  it  was  admitted,  been 
cultivated  in  the  municipalities  through  the  same  prin- 
ciple of  obligatory  service  as  developed  in  the  municipal j 
corporations  act  of  1808. 

IV. —  The  cities. 

In  order  to  give  a  complete  outline  of  the  local 
government  of  Prussia  it  remains  to  speak  of  the 
municipal  organization.  It  will  be  remembered  that 
the  first  steps  in  the  great  reform  movement  of  this 
century  were  made  by  Stein  in  his  municipal  corpora- 
tions act  of  1808,  which  served  as  the  model  for  both 
the  circle  and  the  province  laws  passed  so  many  years 
afterwards.^  Stein  was  able  to  begin  the  great  work 
with  the  cities,  because,  as  a  result  of -the  centraliza- 
tion of  the  eighteenth  century,  the  social  conditions  of 
the  municipal  population  had  been  made  comparatively 
equal.    The  strong  government  of  Frederick  William  I 

*  Revue  Generate,  etc.,  Oct.,  1886,  253. 

^  For  a  history  of  the  development  of  the  Prussian  and  German  cities  up  to 
1808,  see  Leidig,  Preussisches  Stadirecht,  2-20. 


LOCAL  ADMINISTRATION  IN  PRUSSIA,      329 

had  largely  freed  the  poorer  classes  from  economic  de- 
pendence upon  the  richer.  Though  the  spirit  which 
was  breathed  into  the  new  organization  was  quite 
different  from  that  which  animated  the  old  municipal 
system,  the  actual  form  of  municipal  government, 
established  by  the  new  law,  was  in  no  respect  very 
different  from  that  which  existed  before  Stein  began 
his  work.  The  changes  which  he  made  consisted 
mainly  in  the  widening  of  the  suffrage  for  the  city 
council,  which  still  remained  the  important  organ  of 
the  municipal  government;  in  the  new  obligation 
which  was  imposed  upon  the  citizens  of  the  munici- 
pality to  take  upon  themselves  public  duties ;  and  in 
the  greater  degree  of  freedom  which  was  allowed  the 
cities  in  the  management  of  their  own  affairs.  Since 
the  time  of  Stein,  some  modifications  have  been  made 
in  his  plan — modifications  which  may  not  on  the  whole 
be  called  improvements.  They  were  due  mainly  to  the 
desire  of  the  Conservative  party — which,  with  the  ex- 
ception of  very  short  periods — as  during  1848-50 — has 
until  recently  been  in  complete  power — to  curtail  the 
political  influence  of  the  municipal  population.  These 
modifications  have  consisted  mainly  in  the  strengthen- 
ing of  the  central  control  over  the  cities,  and  in  the 
limitation  of  their  freedom  of  action  in  the  manage- 
ment of  their  own  affairs.  In  detail,  the  present 
municipal  organization  is  as  follows : 

Just  as  in  the  open  country,  it  is  recognized  that 
there  is  a  sphere  of  municipal  action  in  which  the  muni- 
cipality should  have  considerable  autonomy,  and  that 
there  are  certain  functions  of  administration  attended 
to  within  the  municipal  district  which  interest  the 
country  as  a  whole,  and  over  which  the  central  admin- 


330  LOCAL  ADMINLSTRATION. 

istration  should  have  a  greater  control.  Just  as  in  the 
circle,  again,  it  is  believed  to  be  better  not  to  make  a 
complete  separation  in  the  authorities  which  are  to 
attend  to  these  two  different  classes  of  duties,  but  to 
charge  the  executive  authorities  of  the  city  with  the 
performance  of  those  duties  which  are  of  general  con- 
cern. It  is  provided,  however,  that  in  the  larger  cities 
the  central  government  may,  if  it  sees  fit,  put  into  the 
hands  of  distinctively  central  organs  the  management 
of  police  matters  ^ ;  and  this  it  has  done  in  many  cases. 
In  the  smaller  cities  on  the  other  hand,  the  city  execu- 
tive attends  to  these  matters  as  well  as  to  all  other 
matters  which  affect  the  country  as  a  whole.  In  these 
cases  it  is  regarded  as  an  agent  of  the  central  adminis- 
tration, and  acts  under  the  control  of  the  central  ad- 
ministrative authorities,  generally  the  governnaents  and 
the  government  presidents.^  In  case  the  city  is  at  the 
same  time  an  urban  circle — which  it  will  be  remem- 
bered is  the  case  in  all  cities  having  over  twenty -five 
thousand  inhabitants, — the  city  executive  in  like 
manner  attends  to  all  the  duties  which  in  the  rural 
circles  are  attended  to  by  the  landrath.  In  these 
urban  circles  there  is  also  a  lay  body,  similar  to  the 
circle  committee,  called  the  city  committee,^  which, 
however,  attends  only  to  matters  of  central  concern. 
As  this  city  committee  consists  of  the  burgomaster  of 
the  city  and  of  members  chosen  either  from  the  town 
executive  board,  or,  where  there  is  no  such  board, 
from  the  town  council,'^  the  result  is  that  in  all  cases  it 
is  the  city  officers  who  attend  to  the  central  adminis- 

*  Law,  March  ii,  1850,  sec.  2. 

'  Stddte-Ordnung,  May  30,  1853,  sec.  56,  cited  hereafter  as  S.  O.,  1853. 
'  K.  O.,  sec.  170. 

*  A.  L.  V.  G.,  sees.  37,  38. 


LOCAL  ADMINISTRATION  IN  PRUSSIA,      331 

tration  in  the  city — witli  the  exception  (already  noted) 
of  the  police  administration  in  the  larger  cities. 

1.  City  council. — But  while  city  officers  are  thus 
generally  called  upon  to  attend  to  the  business  of  the 
central  administration  in  the  city,  the  most  important 
functions  of  the  municipal  administration  are  those  of 
a  distinctively  local  character.  The  general  control  of 
this  local  administration  is  vested  in  the  city  council, 
which  is  chosen  by  the  taxpayers  of  the  city.^  The 
method  of  election  is  peculiar:  it  is  well  adapted  to 
keep  the  control  of  the  city  affairs  in  the  hands  of  the 
wealthy  classes,  since  the  influence  of  a  nian*s  vote 
depends  largely  upon  the  amount  of  taxes  he  pays. 
The  system  is  as  follows :  The  total  amount  of  the 
direct  taxes  paid  in  the  city  is  divided  into  three  parts. 
Those  persons  paying  the  highest  taxes,  who  pay  one 
third  of  the  entire  amount,  have  the  right  to  elect  one 
third  of  the  members  of  the  council.  Those  persons 
who  pay  the  next  highest  taxes,  and  who  pay  another 
third  of  the  entire  amount,  elect  another  third  of  the 
members  of  the  council.  All  the  remaining  taxpayers 
elect  the  remaining  third.^ 

An  example  taken  from  the  city  of  Bonn,  which  has 
a  population  of  about  thirty -six  thousand  inhabitants, 
will  show  how  thoroughly  this  method  of  representa- 
tion throws  the  control  of  the  city  into  the  hands  of 
the  wealthy  classes.  Out  of  the  total  number  of  3,402 
electors,  162  electors  elected  one  third  of  the  town 
council,  633  elected  two  thirds,  and  the  remaining 
third  was  elected  by  2,607  electors.  The  disproportion 
between  the  classes  was  really  much  greater  than  the 
above  vote  indicates,  for  while  sixty-four  per  cent,  of 

'  S.  O.,  1853,  sec.  35.  ^S.  O.,  1853,  sec.  13. 


332  LOCAL   ADMINISTRATION. 

tlie  electors  of  tlie  first  class  voted,  and  sixty-six  per 
cent,  of  the  second  class,  only  twenty-two  per  cent,  of 
the  third  class  availed  themselves  of  their  electoral 
privilege.  The  explanation  is  said  to  be  this :  The 
vote  not  being  secret,  intimidation  had  been  practised 
to  such  an  extent  that  the  voters  of  the  third  class 
preferred  to  stay  away  from  the  polls  rather  than  vote 
for  candidates  who  were  not  of  their  choice.* 

The  authority  thus  formed  has  the  absolute  control 
of  the  entire  city  administration.  The  law  simply  says 
that  it  shall  govern  by  its  decisions  the  affairs  of  the 
city.^  In  addition  to  deciding  what  branches  of  admin- 
istration the  municipality  shall  attend  to  it  also  elects 
all  of  the  executive  officers  of  the  municipality. 

2.  Gitnj  executive, — The  execution  of  the  resolutions 
of  the  town  council  is  entrusted  either  to  a  burgo- 
master who  has  complete  control  of  the  administration 
in  its  details,  or  to  an  executive  board  whose  members 
are  elected  by  the  town  council.  In  such  an  executive 
board,  a  part  of  the  members  are  professional  in  char- 
acter (as,  for  example,  the  school  commissioner,  the 
corporation  counsel,  the  town  surveyor  or  commissioner 
of  public  works)  and  a  part  are  purely  lay  officers,  i.  e, 
ordinary  citizens  who  are  obliged  to  assume  office  if 
elected,  and  to  serve  at  least  half  the  regular  term  of 
six  years.3  The  same  obligation  to  serve  is  imposed 
upon  those  persons  who  are  elected  to  be  members  of 
the  town  council.*     In  case  the  executive  authority  of 

^  Leclerc,  "  La  vie  municipale  en  Prusse,"  Extrait  dtt  AHU4le9  de  V Acole 
Libre  des  Sciences  Politiques,  13. 

^  For  example,  see  Stddte-Ordnung  der  Provinz  Westphalen,  March  19, 
1856,  sec.  35. 

3  Ibid. 

*Z.  G..  sec.  10. 


LOCAL  ADMLNLSTRATION  LN  PRUSSIA.      333 

the  city  is  v^ested  in  ^  sucli  a  board,  the  burgomaster  is 
simply  the  presiding  officer  and  has  powers  little  greater 
than  those  possessed  by  the  other  members  of  the 
board.  But  the  moral  influence  which  he  exercises  is 
nevertheless  so  great  as  very  largely  to  determine  the 
character  of  the  city  administration/  He  is  a  profes- 
sional officer  and  receives  a  large  salary.  In  filling  the 
position  of  burgomaster — or,  in  fact,  that  of  any  of  the  /|  \ 
professional  officers  of  the  executive  board — the  method 
pursued  indicates  the  desire  of  the  city  councils  to 
secure  the  best  possible  men.  The  city  council  of 
a  city  which  needs  a  burgomaster,  a  commissioner  of 
public  works,  or  any  such  officer,  advertises  in  the 
papers  for  the  particular  officer  needed,  stating  the 
qualifications  which  are  required.  The  council  then 
selects  from  among  the  applicants  the  one  who  seems 
best  fitted  for  the  place.  A  large  city  often  chooses  a 
burgomaster  who  has  made  his  reputation  as  a  good 
executive  officer  in  a  smaller  city."*  As  the  term  of 
office  is  at  least  twelve  years,  and  may  be  for  life,  the 
positions  are  much  sought  after,  and  the  applicants  are 
generally  well  educated  men  who  have  had  experience 
in  city  ad  minis  tration.^  The  election  of  these  profes- 
sional officers  generally  requires  the  approval  of  the 
central  administration  before  it  is  of  force.*  This  is 
considered  to  be  necessary  on  account  of  the  many 
duties  affecting  the  country  at  large  which  are 
devolved  upon  the  city  executive.  While  the  execu- 
tive has,  in  the  main,  to  carry  out  the  resolutions  of 
the  council,  it  has  at  the  same  time  to  exercise  quite  a 
control  over  the  actions  of  this  body — both  to  keep  it ' 

*  S.  O.,  1853,  sees,  57,  58.  "^  Leclerc,  op.  cii.,  20.  ^  ji^d.,  17. 

*'S.  O.,  1853,  sec.  33  ;  Z.  G.,  sec.  13. 


334  LOCAL   ADMINISTRATION. 

within  the  law  and  to  prevent  it  from  taking  unwise 
action.  In  case  of  conflict  between  the  executive  and 
the  council  the  matter  is  decided  by  the  proper  super- 
visory authority,  in  this  case  the  district  committee.^ 
As  this  is  a  lay  authority,  the  professional  officers 
of  the  central  administration  cannot  now  interfere  in 
the  municipal  administration.  A  further  control  exer- 
cised by  the  central  government  over  the  municipal 
administration  is  found  in  the  requirement  of  the 
approval  of  the  district  committee  for  certain  resolu- 
tions of  the  city  council  before  they  are  regarded  as  valid. 
Among  the  acts  subjected  to  such  control  are  the  more 
important  measures  of  the  financial  administration, 
such  as  the  making  of  loans  and  the  imposition  of 
high  taxes.^  The  rules  are  much  the  same  as  those 
already  mentioned  as  adopted  for  the  communal 
administration  of  the  circle  and  the  province.  In  fact, 
the  control  over  the  circle  and  the  province  was 
modelled  on  that  already  formed  for  the  municipalities 
by  the  municipal  coi-porations  act  of  Stein  as  amended 
by  later  laws. 

3.  &ity  deparimients. — A  word  must  be  said  in  re- 
gard to  the  organization  of  the  city  departments  which 
attend  to  the  detailed  current  administration.  The 
municipal  corporations  act  of  1853  provides  that  for 
these  matters  there  may  be  formed  permanent  commis- 
sions or  boards,  composed  either  of  members  of  the 
council  or  of  members  of  the  executive  board  or  of 
these  and  other  municipal  citizens,  which  boards  or 
commissions  are  the  subordinates  of  the  executive  and 
have  under  their  direction  the  salaried  members  of  that 

»S.  O.,  1853,  sec.  56  ;  Z.  G.,  sec.  17,  i. 

*S.  O.,  1853,  sec.  53  ;  Z.  G.,  sec.  16,  Abs.  3. 


LOCAL  ADMINISTRATION  IN  PRUSSIA.      335 

body/  The  purpose  of  this  arrangement  is  to  call  into 
the  service  of  the  city  as  many  of  the  citizens  as  possi- 
ble. Service  on  aiich  boards  is  obligatoiy,  as  is  the 
case  with  all  unsalaried  positions  in  the  city  govern- 
ment. Finally  the  same  law  provides  that  the  larger 
cities  may  be  sub-divided  into  wards,  over  which-  are 
to  be  placed  ward-overseers  to  be  elected  from  among 
the  citizens  by  the  town  council.^  These  ward-over- 
seers are  the  subordinates  of  the  executive  board  for 
all  matters  of  municipal  administration.  This  institu- 
tion has  been  very  generally  adopted  in  the  larger 
cities,  where  it  has  had  excellent  results.  The  ward 
overseers  serve  as  means  of  communication  between  the 
different  districts  and  the  executive  board.  If  any- 
thing goes  wrong  in  the  district,  there  is  always  some 
one  to  whom  complaint  may  be  made  with  the  as- 
surance that  the  complaint  will  be  attended  to.  An 
example  of  the  workings  of  such  an  institution  may 
again  be  taken  from  the  city  of  Bonn.  This  city  is 
divided  into  ten  wards.  In  each  of  these  is  an  over- 
seer who,  in  the  administration  of  public  charity,  has 
under  him  ward  commissions  of  citizens,  whose  duty  it 
is,  under  his  direction,  to  examine  into  all  cases  of  de- 
mand for  poor-relief.  So  many  persons  are  called  into 
the  municipal  service  of  public  charity  that  each  one 
of  them  has  no  more  than  two  or  three  families  to 
attend  to  and  thus  knows  perfectly  the  condition  of 
those  asking  for  relief.^  This  method  of  administering 
poor  relief  is  simply  the  adoption  in  the  public  admin- 
istrative system  of  the  method  which  has  been  so 
successfully  applied  in  this  country  by  private  associa- 
tions such  as  the  charity  organization  societies  and  the 
bureaus  of  charity. 

*S.  O.,  1853,  sec.  59.  *  Ibid.,  sec.  60.  '  Cf.  Leclerc,  op.  dU,  57. 


336  LOCAL  ADMINISTRATION. 

V. — General  characteristics  of  the  Prussian  system, 
1.  Administrative  control. — As  in  the  Frencli,  so  in 
j  the  Prussian  system  of  local  government,  the  inter- 
ference of  the  central  legislature  in  local  affairs  is 
infinitesimal  if  it  exists  at  all.  Enough  of  the  old 
feudal  ideas  of  local  autonomy  have  remained  to  per- 
mit of  the  development  of  the  principle  that  there  is  a 
sphere  of  administrative  action  which  must  be  left 
almost  entirely  to  the  localities  ;  that  within  this  sphere 
the  legislature  should  not  interfere  at  all ;  that  any 
central  interference  or  control  that  may  be  required 
over  this  local  administration  should  come  from  the 
administration  and  in  the  main  from  the  lay  authorities 
of  the  administration,  and  should  be  confined  simply 
to  preventing  the  localities  from  incurring  too  great 
financial  burdens.  Therefore  the  law  does  not,  as  in 
I  the  United  States  and  as  it  does  to  a  certain  extent  in 
England,  enumerate  the  powers  and  duties  of  the 
localities,  but  says  simply  that  the  local  affairs  of 
particular  districts  shall  be  governed  by  the  decisions 
of  local  authorities  in  the  nature  of  local  legislatures, 
and  that  in  those  cases  only  in  which  the  law  has  ex- 
pressly given  it  the  power,  may  the  central  administra- 
tion step  in  to  protect  the  localities  from  their  own 
unwise  action.  This  system  is  one  of  general  grants 
of  local  power  with  the  necessity  in  certain  cases  of 
central  administrative — not  legislative — approval  or 
control.  The  benefits  of  such  a  system  cannot  be  over- 
-estimated. \  Through  its  adoption  all  the  evils  of  local 
>  and  special  legislation  are  'avoided.  In  place  of  an 
in*esponsible  legislative  control,  which  in  the  United 
States  has  shown  itself  so  incapable  of  preventing  the 
extravagance  of  localities  that  in  many  cases  the  power 


LOCAL  ADMINISTRA  TION  IN  PR  USSIA.       337 

of  the  legislature  to  permit  local  action  lias  been  cur 
tailed  by  the  constitutions,  is  to  be  found  a  control 
exercised  by  responsible  authorities — authorities  which 
have  a  certain  permanence  and  are  well  able  to  judge 
whether  a  given  action  will  be  really  hurtful  to  a 
locality  or  not.  At  the  same  time  the  greater  freedom 
from  central  interference  guaranteed  to  the  localities 
by  this  system  is  well  calculated  to  encourage  the 
growth  of  local  pride  and  responsibility. 

2.  Obligatory  unpaid  service. — Different,  however, 
from  the  French  system  the  Prussian  system  of  local 
government  attempts  by  the  adoption  of  the  principle 
of  unpaid  obligatory  service  (it  will  be  remembered 
that  while  in  many  cases  service  in  the  French  local 
offices  is  unpaid,  it  is  almost  never  obligatory)  to  make 
the  local  administration  largely  non-professional  in 
character.  This,  it  was  felt,  was  peculiarly  necessary 
in  Prussia  on  account  of  the  existence  of  a  most  thor- 
oughly bureaucratic  service.  This  idea  is  adopted 
from  England,  and  consciously  adopted  from  Eng- 
land at  a  time  when  both  forms  of  the  English  system 
of  local  government  are  showing  a  tendency  to  aban- 
don it. 

3.  Subjection  of  local  admmiistration  to  judicial  con- 
^o?.— Under  the  system  in  vogue  up  to  the  time  of  the 
late  reform  the  administration  in  its  local  as  well  as  its 
central  instances  was  almost  a  law  unto  itself.  It  was 
not  only  relieved  from  all  central  legislative  control, 
but  also  from  all  central  judicial  control  except  in  so 
far  as  its  acts  might  be  considered  as  being  regulated 
by  the  principles  of  the  private  law.  The  experience 
of  Prussia  during  the  first  half  of  this  century  was, 
however,  such  as  to  prove  that  if  the  administration 


338  LOCAL   ADMINISTRATION, 

was  to  be  satisfactory  to  the  individual  and  regardful 
of  his  rights,  some  soii;  of  judicial  control  over  it  should 
be  established.  This,  as  has  been  stated,  was  one  of 
the  main  ends  of  the  reform  movement  of  1872.  By 
the  establishment  of  this  judicial  control,  ^  Prussia  has 
taken  a  great  stride  in  advance,  and  may  now  be  re- 
garded as  occupying,  so  far  as  her  local  administration 
is  concerned,  a  position  similar  to  that  which  has  for  so 
long  a  time  been  occupied  by  both  England  and  the 
United  States,  where  the  actions  of  the  local  authori- 
ties are  subjected  to  the  strictest  sort  of  judicial  controL 

^  For  the  details  in  regard  to  it  see  infra,  II.,  p.  243,  ' 


COMPARATIVE  ADMINISTRATIVE  LAW 

BY 

FRANK  J.   GOODNOW 

II 
LEGAL  RELATIONS 


BOOK  IV. 

THE  LAW  OF  OFFICERS. 


CHAPTER  I. 

OFFICES   AND    OFFICERS. 

/. — Definition. 

1.  In  general. — By  an  office  is  understood  a  right  or 
duty  conferred  or  imposed  by  law  on  a  person  or 
several  persons  to  act  in  the  execution  and  application 
of  the  law.^  By  officers  are  meant  those  persons  on 
whom  an  office  has  been  conferred  or  imposed.  The 
word  authority  is  also  sometimes  used  to  designate  the 
person  or  persons  holding  an  office.  It  is  to  be  noticed 
that  an  office  may  exist  without  the  officer.  Thus  we 
often  hear  of  an  office  being  vacant.  On  the  other 
hand  there  may  be  an  officer  who  has  no  office.  Thus 
an  officer  who  has  been  pensioned  or  retired  and  who 
is  not  discharging  official  functions  may  be  subjected 
to  many  of  the  duties  resulting  from  the  existence  of 
the  official  relation.  This  is  particularly  true  of 
Germany.^ 

*  Stengel,  Lehrbuch  des  Deutschen  Verwaltungsrecht,  158  ;  Mechem,  Law  of 
Public  Offices  and  Officers,  I. 
^  Supra,  I.,  p.  94. 

VOL.  II — I  T 


t  THE  LAW  OF  OFFICERS. 

2.  Distinction  between  office  and  employment. — The 
conceptions  of  office  and  officer  are  conceptions  of  public 
and  not  of  private  law.  The  government  may,  how- 
ever, enter  into  private  legal  relations  as  a  result  of 
which  it  may  have  employees  as  well  as  officers.  It 
therefore  becomes  necessary  to  distinguish  as  far  as 
may  be  an  officer  from  an  employee.  It  has  been  said 
that  the  term  office  "embraces  the  idea  of  tenure, 
duration,  emolument,  and  duties."  ^  It  is  not,  however, 
necessary  in  order  that  a  position  under  the  govern- 
ment be  an  office  that  it  have  all  of  these  character- 
istics. Thus  it  seems  certain  that  the  idea  of  emolument 
is  not  at  all  necessary  to  the  conception  of  an  office.^ 
There  are  numerous  positions  which  are  offices  and  to 
which  no  salary  or  emolument  of  any  sort  is  attached. 
But  it  does  seem  to  be  necessary,  in  order  that  a 
governmental  position  be  an  office,  that  it  possess  more 
than  one  of  the  characteristics  mentioned.  The  mere 
fact  that  a  position  is  under  the  government  and  con- 
cerns the  public  will  not  constitute  it  an  office ;  it  may 
be  an  employment.  Thus  one  who  receives  no  certifi- 
cate of  appointment,  takes  no  oath,  has  no  term  or 
tenure  of  office,  discharges  no  duties  and  exercises  no 
powers  conferred  upon  him  directly  by  law,  but  simply 
performs  such  duties  as  are  required  of  him  by  the 
persons  employing  him  and  whose  responsibility  is 
limited  to  them,  is  not  an  officer,  and  does  not  hold  an 
office,  although  he  is  employed  by  public  officers  and 
is  engaged  about  public  work.'  Applying  these  prin- 
ciples, deputies  not  obliged  to  take  the  oath  required 

»  United  States  v.  Hartwell,  6  Wallace,  385. 

«  See  State  v.  Stanley,  66  N.  C,  59. 

*  Olmstead  v.  the  Mayor,  etc.,  42  N.  Y.  Super.,  Ct.  487. 


OFFICES  AND  OFFICERS.  3 

of  officers,  and  not  provided  for  by  law,  have  been  held 
to  be  mere  agents  or  employees  of  their  principals  vrho 
may  be  officers.^  But  deputies  provided  for  by  law 
with  fixed  powers  and  duties  and  giving  bonds  in 
accordance  with  the  law  are  officers,  e,  g.  deputy  post- 
masters, marshals,  and  sheriffs.^  While  there  are 
other  criteria  which  may  be  of  use  in  distinguishing 
an  office  from  an  employment,  the  most  important 
canon  of  distinction  is  that,  while  an  employment  may 
be  created  by  contract  as  a  result  of  the  fact  that  the 
government  may  be  in  some  cases  a  subject  of  private 
law,  an  office  can  never  be  created  by  contract,  but 
finds  its  source  and  its  limitations  in  some  act  of 
governmental  power.  Thus  where  the  legislature 
created  by  an  act  of  legislation  the  position  of  public 
printer  the  court  held  that  such  position  was  an  office 
and  that  the  public  printer  was  an  officer  and  there- 
fore might  not  assign  the  position  ^ ;  but  on  the  other 
hand  where  the  legislature  provided  that  the  public 
printing  was  to  be  "contracted  for,"  the  court  held 
that  the  public  printer  was  a  contractor  and  not  an 
officer.'*  It  will  be  noticed  from  these  cases  that  the 
conception  of  an  office  does  not  depend  in  any  way 
upon  the  character  of  the  duties  to  be  performed.  It 
makes  no  difference  whether  these  duties  carry  with 
them  the  power  of  compulsion  or  not,  or  whether  or 
not  the  holder  of  the  office  is  permanently  occupied  in 

*Kavanaugh  v.  State,  41  Ala.,  399  ;  see  also  U.  S.  v.  Smith,  124  U.  S.,  525  ; 
Throop  V.  Langdon,  40  Mich.,  673  ;  and  note  on  page  180  of  72  American 
Decisions. 

'  Dunlop  V.  Munroe,  7  Cranch,  242 ;  U.  S.  v.  Martin,  17  Fed.  Rep.,  150 ; 
Eastman  v.  Curtis,  4  Vt.,  616. 

»  Ellis  V.  State,  4  Ind.,  i. 

*  Brown  v.  Turner,  70  N.  C,  93  ;  see  also  Detroit  Free  Press  Co.  v.  State 
Auditors,  47  Mich.,  135. 


4  THE  LA  W  OF  OFFICERS. 

tlie  discharge  of  his  duties,  or  whether  or  not  the 
duties  are  discretionary/  All  that  seems  to  be  neces- 
sary is  that  the  duties  discharged  be  discharged  in  the 
interest  of  the  government,  and  that  the  right  to  dis- 
charge them  be  based  on  some  provision  of  law  and 
not  upon  a  contract.^  The  duties  themselves  may  be 
quite  similar  to  or  even  identical  in  character  with  the 
duties  discharged  by  private  persons.  Thus  a  clerk  in 
an  executive  department  of  the  United  States  or  of 
the  commonwealths  may  be  an  officer.^  It  has  been 
held  that  even  a  sailmaker  appointed  under  a  warrant 
under  the  hand  of  the  secretary  of  the  navy  and  the 
seal  of  the  department  was  an  officer.  In  many 
cases  it.  is  exceedingly  difficult  to  distinguish  between^ 
an  officer  and  an  employee,  the  reason  being  that  the 
courts  in  their  decisions  have  been  influenced  by  some 
peculiar  statutory  provision.  Thus  where  statutes 
have  imposed  criminal  penalties  on  "officers"  for  the 
violation  of  their  duties  the  courts  often  give  a  much 
narrower  construction  to  the  word  officer  than  they  do 
in  other  cases.  Take  e,  g.  the  case  of  United  States  v, 
Gerrriaine.''  Here  the  court  lays  down  the  rule  that 
only  those  persons  in  the  service  of  the  national 
government  are  officers  who  are  appointed  by  the 
President,  the  head  of  a  department,  or  the  courts,  and 
that  all  persons  not  so  appointed  are  mere  employees 
to  whom  the  rules  affecting  the  official  relation  do  not 
apply.s      This  rule  is  not,  however,  to  be  reconciled 

*  State  V.  Salle,  41  Mo.,  31  ;  Carth,  479. 

2  State  V.  Stanley,  66  N.  C,  59. 

3  Ex  parte  Smith,  2  Cranch,  C.  C,  693  ;  U.  S.  v.  Hartwell,  6  Wallace,  385  ; 
Vaughn  v.  English,  8  Cal.,  39.  ""gg  U.  S.,  508. 

^  See  also  for  an  example  of  the  influence  which  peculiar  statutes  have  upon 
the  decisions  of  the  courts  the  cases  of  United  States  v.  Mouat,  124  U.  S.,  303  ; 


OFFICES  AND  OFFICERS.  5 

with  some  of  the  other  decisions  of  the  Supreme  Court 
as  e.  g.  that  of  United  States  v.  Hartwell^  which  holds 
that  a  person  whose  appointment  though  not  made  by 
a  head  of  a  department  has  been  approved  by  him,  is 
an  officer.^  Finally  it  is  to  be  noticed  that  the  defini- 
tion that  has  been  given  of  the  terms  office  and  officer 
does  not  regard  as  officers  those  persons  who  discharge 
in  the  main  what  are  called  legislative  functions,  ^.  e. 
those  persons  who  are  members  of  the  legislature  both 
national  and  commonwealth.  This  is  in  accordance 
with  the  rule  laid  down  by  the  Senate  of  the  United 
States  acting  as  a  court  of  impeachment.  In  1799  it 
decided  that  a  senator  was  not  a  civil  officer  of  the 
United  States  because  he  was  a  member  of  the  legisla- 
ture.^ But  it  is  to  be  noticed  also  that  the  action  of 
the  Senate  on  this  point  is  not  altogether  consistent 
inasmuch  as  in  January,  1864,  it  decided  that  an  oath 
prescribed  for  civil  officers  by  the  act  of  July  2,  1862, 
must  be  taken  by  senators  also  * ;  and  that  the  deci- 
sions of  several  of  the  courts  would  seem  to  hold  that 
for  the  purpose  of  disqualifying  for  office  the  position 
of  member  of  the  legislature  both  national  and  com- 
monwealth is  an  office.^ 


United  States  v.  Hendee,  Ibid.,  309,  which  hold  that  a  paymaster's  clerk  who 
was  not  appointed  by  the  head  of  the  department  and  whose  position  was  not 
provided  for  by  law  is  not  an  officer  for  the  purpose  of  mileage,  but  is  one  for  the 
purpose  of  longevity  pay  ;  and  also  the  case  of  Ex  parte  Reed,  100  U.  S.,  13. 

'  Supra,  II.,  p.  2. 

^  For  the  decisions  of  the  courts  as  to  the  various  positions  under  the  govern- 
ment both  national  and  commonwealth,  see  Mechem,  Law  of  Offices  and  Officers, 
12  et  seq. 

3  See  Blount's  Trial. 

*  Cyciopcedia  of  Political  Science,  etc.,  sub  verbo  impeachment,  II.,  481. 

*  People  V.  Common  Council,  77  N.  Y.,  503  ;  see  also  Morrel  v.  Haines,  2 
N.  H.,  246  ;  but  see  Wortley  v.  Barrett,  63  N.  C,  199,  201. 


6  THE  LAW  OF  OFFICERS. 

11. — Methods  of  organizing  offices. 

Official  authorities  differ  in  the  way  in  which  they 
are  organized.  Thus  an  authority  may  consist  of  one 
person  or  of  more  than  one  person.  In  the  first  place 
while  one  person  may  not  do  all  the  work  of  the  office, 
while  he  may  be  assisted  in  the  performance  of  his 
duties  by  many  subordinates  and  deputies  who  in  their 
turn  may  be  officers,  still  all  the  actions  of  the  office 
are  to  be  done  under  his  direction  and  on  his  responsi- 
bility. A  system  of  offices  founded  on  this  principle 
may  be  called  a  single-headed  system.^  In  the  second 
plan  of  organizing  an  official  authority  the  office  is 
held  by  more  than  one  person,  by  several  persons  who 
exercise  their  powers  and  perform  their  duties  by 
means  of  resolutions  of  the  entire  body.  In  the  mak- 
ing of  these  resolutions  each  one  of  the  holders  of  the 
office  has  legally  as  much  influence  as  any  of  the  others 
with  perhaps  the  exception  of  the  president  of  the 
board,  who  may  have  the  right  of  giving  the  casting 
vote  in  case  of  a  tie  vote.^  A  system  in  which  the 
official  authorities  are  organized  as  boards  is  called  the 
collegial  or  board  system.  Each  of  these  plans  of  or- 
ganizing offices  has  its  advantages  and  disadvantages. 
The  single-headed  system  is  well  fitted  for  the  dis- 
charge of  duties  which  require  energy  and  rapidity  of 
action  and  for  which  it  is  advisable  to  have  a  fixed  and 
well-defined  responsibility;  while  the  board  system 
may  be  adopted  with  advantage  in  all  those  branches 
of  administration  in  which  carefulness  of  deliberation, 

*  The  Germans  call  such  a  system  a  bureaucratic  system,  while  the  equivalent 
French  term  is  systeme  unitaire. 

^  See  for  the  rules  of  law  in  the  United  States  in  regard  to  boards,  Mechem, 
op.  cit.,  sees.  571-81. 


OFFICES  AND  OFFICERS.  7 

regard  for  all  sides  of  the  case  and  impartial  decision 
are  particularly  desired.  Boards  are  therefore  specially 
suited  for  the  consideration  of  those  matters  in  which 
a  controversy  between  individuals  involving  a  question 
of  law  is  to  be  decided,  i.  e.  for  judicial  authorities, 
while  the  single-headed  system  is  usually  the  best  for 
purely  executive  and  administrative  matters.  It  is, 
however,  to  be  noticed  that  for  many  administrative 
matters  the  board  system  is  to  be  preferred  for  the 
reasons  already  stated.  This  is  particularly  true  of  the 
case  of  the  assessment  of  property  for  the  purposes  of 
taxation.  For  these  reasons  we  find  that  seldom  does 
any  system  of  administrative  organization  adopt  either 
one  of  these  methods  of  official  constitution  to  the  ex- 
clusion of  the  other,  but  that  the  attempt  is  usually 
made  to  combine  the  two  forms  in  such  a  way  as  to 
produce  the  best  results.  In  France,  however,  the 
attempt  has  been  made  to  devise  one  method  of  official 
constitution  which  will  combine  individual  respon- 
sibility and  administrative  efficiency  with  mature 
deliberation  and  impartial  decision.  Here  we  find  by 
the  side  of  each  of  the  important  administrative  officers 
who  alone  have  the  actual  power  of  decision  and  alone 
are  to  assume  the  full  responsibility  for  the  acts  of  the 
office,  a  council  whose  advice  must  be  asked  in  the 
more  important  matters  within  the  jurisdiction  of  the 
office  but  whose  advice  need  never  be  followed.^ 

///. — Honorary  and  professional  officers. 

Officers,  like  authorities,  may  be  variously  classified.^ 
In  many  states  there  is  an  important  distinction  be- 

*  Supra,  I.,  pp.  86,  III.  '  See  Mechem,  op.  cit.,  9. 


8  THE  LA  W  OF  OFFICERS, 

tween  professional  and  honorary  officer^.^  Tlie  first 
are  those  officers  who  devote  their  entire  time  to  the 
discharge  of  public  functions,  have  no  other  occupa- 
tion^ are  indeed  by  law  allowed  to  have  no  other 
occupation,  and  receive  a  sufficiently  large  compensa- 
tion to  enable  them  to  live  without  resorting  to  other 
means.  From  such  officers  is  often  required  by  law  a 
professional  training  or  more  or  less  knowledge  of  the 
affairs  to  which  their  official  duties  relate.  In  some  states 
this  requirement  is  carried  so  far  as  to  necessitate  the 
pursuit  by  the  candidates  for  official  positions  of  a  regu- 
lar course  of  instruction  in  administrative  matters.  A 
system  of  administration  which  relies  entirely  or  mainly 
upon  professional  officers  is  termed  a  bureaucratic  sys- 
tem In  it  we  find  a  profession  of  office-holding  and  an 
official  class  which  attends  to  the  administration  of 
public  affairs.  Honorary  officers  on  the  other  hand  do 
not  devote  their  entire  time  to  their  public  duties,  but 
at  the  same  time  that  they  are  holding  public  office 
may  be  carrying  on  some  other  regular  business  and 
find  their  main  means  of  support  in  such  business  or 
in  their  private  means,  since  they  receive  a  compensa- 
tion insufficient .  to  support  them.  In  such  a  system 
the  office  is  regarded  not  as  a  means  of  livelihood  but 
as  an  honor,  and  candidates  for  the  office  are  not 
required  to  possess  any  particular  knowledge  of  the 
duties  of  the  office  they  may  desire  to  hold.  A  system 
of  administration  which  relies  entirely  or  mainly  upon 
such  honorary  non-professional  officers  is  called  a  self- 
government  system.     In  it  we  find  no,  or  a  very  small 

^  In  the  United  States  the  nearest  legal  distinction  to  this  is  that  between 
lucrative  and  honorary  offices,  the  idea  of  professional  offices  being  very  dim. 
See  State  V.  Stanley,  66  N.  C,  59  ;  Hoke  v.  Henderson,  4  Devereux,  Law  N. 
C,  I,  21. 


OFFICES  AND  OFFICERS.  9 

class  of,  professional  officers.  In  it  government  is  ad- 
ministered by  members  of  society  who  temporarily 
discharge  public  functions.  There  probably  never  was 
in  the  history  of  the  world  an  absolutely  bureaucratic 
administrative  system,  though  that  existing  in  Prussia 
from  1720  to  1808  and  that  established  in  France  in 
1800  were  pretty  nearly  completely  bureaucratic.  On 
the  other  hand  there  has  seldom  been  seen  a  complete 
self-government  system  of  administration,  though  that 
of  England  in  the  eighteenth  century  was  about  as 
near  one  as  can  well  be  imagined.  All  existing  sys- 
tems of  administration  are  formed  of  a  combination  of 
professional  and  honorary  officers,  one  of  the  classes 
predominating  and  giving  the  general  tone  to  the 
system.  In  the  United  States  the  self-government 
system  predominates ;  in  Europe  on  the  contrary  the 
bureaucratic,  especially  on  the  continent,  though  Eng- 
land is  not  far  behind  the  continent,  and  Prussia,  and 
indeed  Germany  as  a  whole,  has  of  late  been  trying  to 
increase  the  realm  of  the  self-government  system.^  In 
those  countries  in  which  the  official  system  is  most 
scientifically  organized  we  find  a  clear  distinction  made 
between  these  two  classes  of  officers.  This  is  true  of 
Germany  where  different  rules  govern  the  relations  of 
each  class  of  officers.  In  other  countries,  however, 
while  the  two  classes  of  officers  do  really  exist,  no 
great  attempt  is  made  in  the  law  to  distinguish  be- 
tween them.  Such  for  example  is  the  case  in  the 
United  States. 

Each  of  these  two  systems,  viz,^  the  bureaucratic  and 
the  self-government  system,  has  its  advantages.  The 
special  knowledge  and  training  possessed  by  profes- 

^  Supra,  I.,  p.  301. 


lo  THE  LA  W  OF  OFFICERS. 

sional  officers,  their  generally  long  terms  of  office,  and 
the  fact  that  they  are  occupied  exclusively  in  the 
management  of  public  business  make  it  almost  certain 
that,  when  well  organized,  they  will  act  more  wisely 
and  efficiently  than  officers  who  have  no  special  knowl- 
edge of  their  duties,  who  serve  for  short  terms,  and  are 
expected  to  devote  only  a  part  of  their  time  to  the 
public  service ;  and  make  it  extremely  probable  that 
the  cost  of  such  a  system  will,  notwithstanding 
the  fact  that  salaries  are  paid,  be  less  than  the  cost 
of  self-government  administration.  For  these  reasons 
the  popular  remedy  for  administrative  evils  is 
bureaucracy;  and  if  wise,  efficient,  and  economical 
administration  were  the  only  or  even  the  main  end 
sought  in  the  organization  of  the  administrative  system 
it  might  be  admitted  without  question  that  the  popular 
remedy  was  the  proper  remedy.  But  it  must  never 
be  lost  sight  of  that  good  administration  is  only  one, 
and  that  a  minor,  end  of  an  administrative  system.  It 
must  always  be  kept  in  mind  that  the  prime  end  of  all 
governmental  systems  should  be  the  cultivation  in  the 
people  of  a  vigorous  political  vitality,  a  patriotic  loyalty 
and  social  solidarity.  History  shows  that  this  end  is 
not  attained  by  a  bureaucratic  system.  The  experi- 
ence of  every  state  which,  to  carry  forward  pressing 
reforms  or  to  secure  administrative  efficiency,  has 
adopted  a  bureaucratic  system  of  administration  goes 
to  prove  that  bureaucracy  is  incompatible  with  civil 
liberty.  The  administrative  history  of  France  and 
Germany  under  the  absolute  monarchy  is  a  striking 
example  of  this  fact.  The  conferring  of  most  of  the 
important  administrative  powers  upon  professional 
officers  deprives  the  citizens  of  the  state  generally,  of 


OFFICES  AND  OFFICERS.  ii 

the  opportunity  to  accustom  themselves  to  public  ser- 
vice and  to  acquire  political  experience ;  and  finally 
destroys  their  ability  to  protect ,  their  liberties  in  an 
orderly  manner.  They  also  lose  interest  in  the  govern- 
ment.  They  regard  with  indifference,  if  not  with 
actual  hatred,  a  government  in  which  they  have  no 
participation.  Finally  the  permanent  exclusion  of  the 
citizens  from  participation  in  administration  encour- 
ages within  them  the  growth  of  class  feeling,  which 
is  one  of  the  greatest  obstacles  to  successful  govern- 
ment. Seldom,  if  ever,  being  obliged  to  consider 
public  questions  from  any  but  the  point  of  view  of  the 
class  to  which  they  belong;  seldom,  if  ever,  being 
called  upon  to  consider  the  public  effects  of  any 
measure,  they  fail  to  acquire  that  sense  of  collectivism 
whose  cultivation  is  so  necessary.  If  at  the  same  time 
that  they  are  shut  out  from  participation  in  adminis- 
tration the  people  are  allowed  to  participate  in  legisla- 
tion the  result  is  even  worse.  For  they  carry  with 
them  into  the  legislative  bodies  the  same  narrow  class 
feelings  by  which  they  are  actuated  in  their  private 
life.  The  legislature  becomes  the  fighting  ground  for 
hostile  social  forces  instead  of  being  the  representative 
of  the  collective  interests  of  the  whole  people.  A 
good  example  of  the  effect  of  a  popular  legislative 
assembly  when  combined  with  a  bureaucratic  adminis- 
tration is  to  be  found  in  the  administrative  history  of 
Prussia  from  1822  to  1860.^  True  socialism  never 
makes  a  greater  mistake  that  when  it  allies  itself,  as 
it  is  so  apt  to  do,  with  bureaucratic  administration. 
Bureaucratic  administration  has  thus  in  all  govern- 
ments  most   evil    results   but    most   particularly    in 

'  See  Supra^  I.,  298 ;  Political  Science  Quarterly,  IV.,  p.  656  et  seq. 


12  THE  LAW  OF  OFFICERS. 

popular  governments  where  the  people  are  allowed  to 
participate  in  legislation.  Its  efficiency  easily  becomes 
tyranny ;  its  economy  is  dearly  paid  for  by  the  loss  of 
political  capacity  and  the  growth  of  social  faction. 

What  the  bureaucratic  system  tends  to  destroy  the  self- 
government  system  tends  to  foster.  The  participation 
of  numerous  citizens  in  the  work  of  administering  gov- 
ernment not  only  tends  to  increase  by  the  sure  method 
of  practice  the  political  capacity  of  the  people,  but 
also  causes  them  to  regard  the  government  as  their  own 
and  finally  brings  them  to  consider  public  measures 
from  a  point  of  view  other  than  that  of  their  own 
social  class,  to  consider  what  influence  they  will  have 
on  the  community  as  a  whole.  The  almost  complete 
absence  of  social  parties  in  England  during  the  sway 
of  the  self-government  system  is  a  striking  example  of 
the  influence  of  this  system  of  administration.  Of 
course  reliance  cannot  be  placed  alone  upon  the  ad- 
ministrative system  to  bring  about  these  results.  The 
admonitions  of  religious  teaching  and  the  influences  of 
a  lofty  humanitarian  philosophy  have  their  part  in  the 
work  to  perform,^  but  it  should  be  recognized  that  the 
administrative  system  has  an  important  influence  in 
the  conquest  of  human  selfishness  in  the  form  of  class 
tyranny. 

There  are,  however,  some  branches  of  administra- 
tion in  which  the  radical  defects  of  the  system  of  pop- 
ular non-professional  officers  are  very  marked.  The 
inherent  weaknesses  of  the  self-government  system — 
its  extravagance,  its  inefficiency,  and  the  unwisdom  of 
its  actions — become  so  serious  as  to  force  the  conclu- 
sion that  in  some  branches  self-government  is  impos- 

*  Cf.  Gneist,  Das  Englische  Parlamcnt,  Introduction. 


OFFICES  AND  OFFICERS.  13 

sible.  There  are  many  positions  in  the  municipal 
administration  particularly — positions  which  are  in- 
creasing in  number  with  the  increase  of  the  duties  of 
the  administration — which  require  great  technical 
knowledge,  whose  duties  are  so  arduous  as  to  occupy 
the  entire  time  of  the  incumbents.  Here  it  seems 
necessary  to  demand  of  the  incumbents  a  professional 
training  and  to  pay  them  salaries/  Bureaucracy  is 
made  necessary  by  the  conditions  of  the  case.  The 
question  is  not  whether  we  shall  have  a  bureaucracy — 
for  we  must  in  the  nature  of  things  have  it — but  how 
we  shall  organize  it  so  as  to  give  it  the  best  propor- 
tions possible  and  so  as  to  avoid  the  evil  results  by 
which  it  is  so  generally  attended.  Especially  must 
care  be  taken  not  to  organize  the  bureaucracy  on  the 
principles  which  are  applicable  to  the  self-government 
system.  If  salaries  are  to  be  paid,  professional  knowl- 
edge and  the  devotion  of  the  entire  time  of  the  officer 
to  the  work  of  the  office  should  be  required  also,  since 
the  impossibility  of  such  an  officer's  earning  his  living 
in  any  other  way  is  the  only  reason  why  a  salary 
should  be  paid.  Long  terms  of  office  should  take  the 
place  of  the  short  terms  of  the  self-government  system. 
What  should  be  a  profession  should  not  be  allowed  to 
degenerate  into  a  trade.  Finally  the  system  should  be 
so  organized  that  the  people  from  whom  the  govern- 
mental power  comes  and  for  whose  benefit  it  is  to  be 
exercised,  should  have  a  control  over  the  bureaucracy 
in  order  that  the  deliberate  wishes  of  the  community 
may  have  their  expression  in  the  action  of  the  admin- 
istration. 

*  Cf.  President  Eliot  in  the  Forum,  October,  1891,  on  "  One  Remedy  for  Mu- 
nicipal Mis-govemment "  ;  Gumplowicz,  Das  Oesterreickiscke  Staaisrecht,  179, 
180. 


CHAPTER  IL 

THE   FORMATION   OF   THE   OFFICIAL   RELATION. 

/. — Appointment  or  election. 

Of  the  various  methods  of  forming  the  official  rela- 
tion the  two  most  important  are  appointment  and  elec- 
tion. There  are,  it  is  true,  several  others  less  important. 
Thus  the  official  relation  is  sometimes  formed  by  the 
drawing  of  lots  as  in  the  case  of  the  jury  ;  often  other 
things  being  equal  the  official  relation  is  formed  as  a 
result  of  seniority  and  juniority.  Thus  in  the  French 
elections  the  two  oldest  and  the  two  youngest  electors 
present  at  the  opening  of  the  polls  and  able  to  read 
are  the  canvassers  of  elections.^  In  other  cases  office 
is  gained  by  inheritance.  We  find  numerous  exam- 
ples of  this  method  among  the  offices  of  the  royal 
household  in  England.'  But  this  method  is  becoming 
rarer  and  rarer  as  time  goes  by.  Originally  the  com- 
mon method  of  filling  offices  in  the  United  States  was 
an  executive  appointment.  The  only  exception  to  this 
rule  was  to  be  found  in  the  case  of  the  town  officers. 
Partisan  use  was  early  made  of  the  power  of  appoint- 
ment in  New  York.  Each  new  party  that  came  into 
power  felt  that  it  was  its  right  to  fill  all  offices  to 

^L.  May  5,  1884,  art.  31. 

•Gncist,  Das  Englische  Verwaltungsrecht,  etc.^  1884,  167. 

14 


FORMATION  OF  THE  OFFICIAL  RELATION.    15 

which  appointment  might  be  made  with  its  own  ad- 
herents and  to  make  places  for  them  by  the  discharge 
of  existing  officers.*  This  habit  was  not  confined  to 
New  York  but  afterwards  made  its  way  into  the  na- 
tional administration  and  thence  spread  to  every 
one  of  the  commonwealths.  The  evils  resulting  from 
such  a  practice  led  the  people  very  generally  to  change 
the  method  of  forming  the  official  relation.  Many  of 
the  offices  were  made  elective.  The  movement  con- 
tinued from  1825  to  1850  with  the  final  result  that 
almost  all  the  important  offices  were  filled  by  popular 
election  both  in  the  central  commonwealth  government 
and  in  the  localities.  Since  1850,  however,  there  has 
been  somewhat  of  a  reaction  in  favor  of  the  old  method 
by  executive  appointment,  the  reason  being  found  in 
the  fact  that  the  method  by  election  did  not  have  the 
beneficial  results  which  were  expected  of  it.  No 
change  in  the  original  method  of  forming  the  official 
relation  was  made  in  the  national  administration,  not 
because  the  same  evils  were  not  present,  but  because 
the  method  of  appointment  being  provided  by  the 
national  constitution  could  be  changed  only  with  very 
great  difficulty.  In  all  cases  where  the  method  of  ap- 
pointment has  been  adopted  the  appointment  is  not 
necessarily  to  be  made  by  the  administrative  chief, 
but  in  many  cases  by  the  heads  of  the  executive  de- 
partments, and  in  the  localities  by  the  chief  local 
authorities.^ 

In  both  Prance  and  Germany  the  great  majority  of 
offices  both  central  and  local  are  filled  by  executive 
appointment,  the  only  officers  of  importance  who  are 

» Gitterman,  "  New  York  Council  of  Appointment,"  Pol.  Sci.  Qu.,  VII.,  80. 

*  Supra,  I.,  pp.  146,  243,  274. 


i6  THE  LA  W  OF  OFFICERS, 

elected  being  the  members  of  tlie  various  local  deliber- 
ative assemblies.*  In  England  the  original  rule  was  to 
fill  offices  by  appointment,  but  with  the  change  in  the 
system  of  local  government  many  local  authorities 
have  become  elective.^ 

The  aims  of  these  two  methods  of  forming  the 
official  relation  are  quite  different.  The  method  of 
appointment  aims  at  administrative  harmony  and 
efficiency.  The  method  of  election  endeavors  to 
ensure  that  popular  control  over  the  administration 
which  is  the  fundamental  principle  of  popular  govern- 
ment. In  order,  however,  that  such  a  popular  control 
may  be  exercised,  the  people  must  be  in  a  position  to 
judge  of  the  merits  of  the  respective  candidates  for 
office.  They  are  undoubtedly  in  such  a  position  in  the 
rural  districts  where  the  feeling  of  neighborhood  is 
strong.  Here  the  people  know  the  merits  of  the  can- 
didates who  present  themselves  for  local  office  and  are 
in  a  position  to  make  a  wise  choice.  When  we  come, 
however,  to  more  complex  conditions  such  as  exist,  for 
example,  in  the  central  commonwealth  administration 
and  in  the  municipalities  where  the  feeling  of  neighbor- 
hood is  not  strong,  and  where  it  will  be  difficult,  if  not 
impossible,  for  the  people  to  know  much  about  the 
merits  of  the  different  candidates,  it  is  useless  to  adopt 
the  elective  method  in  the  hope  that  the  people  will 
by  its  means  be  able  to  exercise  any  appreciable  con- 
trol over  the  administration.  The  only  way  in  which 
the  people  may  exercise  such  a  permanent  control  over 
the  administration  is  for  them  to  elect  only  the  most 
prominent  officers  of  the  government  who  are  then 
to  appoint  to  the  subordinate  offices.     If  a  long  list  of 

'  Supra,  I.,  pp.  84,  91,  302,  305.  ^  Supra,  I.,  p.  237. 


FORMATION  OF  THE  OFFICIAL  RELATION.    17 

candidates  is  presented  to  the  elector  for  his  choice,  if 
many  of  the  offices  to  be  filled  by  election  are  of  a  sub- 
ordinate or  unimportant  character,  even  the  most 
intelligent  voter  is  apt  to  become  confused.  Other 
reasons  than  the  positive  merits  of  the  candidates  are 
apt  to  influence  his  choice,  and  the  result  of  the  elec- 
tion is  apt  to  be  in  accordance  with  the  wishes  of  those 
few  persons  who  have  the  time  and  the  inclination  to 
busy  themselves  with  the  conduct  of  public  affairs, 
rather  than  in  accordance  with  the  wishes  of  the  people. 
The  elective  method  thus  in  many  cases  does  not  secure 
the  popular  control,  in  order  to  secure  which  it  is 
adopted.  It  not  only  fails  of  its  purpose  but  it  has 
one  or  two  serious  positive  defects.  Through  its  means 
it  is  often  the  case  that  men  of  totally  opposed  views 
on  vital  questions  are  put  into  office,  where,  in  order 
that  the  administration  may  be  efficient,  it  is  necessary 
that  it  be  harmonious.  The  necessity  for  harmony  in 
some  matters  is  so  great  that  it  is  attained  but  through 
the  crooked  and  devious  methods  known  to  practical 
politics  as  "deals,"  "dickers,"  and  "rings."  Such 
methods  are  in  reality  attempts  to  obtain  the  harmony 
which  is  so  necessary  to  efficient  administration ;  their 
great  fault  is  that  through  them  the  popular  control 
over  the  administration  is  destroyed  and  the  responsi- 
bility for  administrative  action  is  diffused.  For  these 
branches  of  administration,  ^.  e,  the  central  common- 
wealth administration  and  the  municipal  administra- 
tion, the  method  of  forming  the  official  relation  should 
be  by  appointment  if  an  efficient,  harmonious,  and  re- 
sponsible administration  under  popular  control  is 
desired.  This  is  the  method  which  has  been  so  success- 
fully adopted  in  the  national  administration.     This  is 


i8  THE  LA  W  OF  OFFICERS. 

also  the  method  wliicli  has  been  adopted  by  the  most 
recent  and  important  municipal  charters  in  the  United 
States/ 

Further  the  elective  method  of  filling  offices  is  in  all 
instances  unfitted  for  offices  the  efficient  performance 
of  whose  duties  requires  the  possession  by  the  incum- 
bents of  large  professional  or  technical  knowledge. 
Such  offices  are  those  of  judge,  law  officer,  civil  engi- 
neer, etc.^  etc.  The  requirement  of  the  possession  by 
the  candidate  of  certain  degrees  or  certificates,  which 
are  supposed  to  evidence  the  necessary  qualifications, 
is  not  really  sufficient.  For  the  people  even  if  their 
choice  is  thus  confined  are  here  again  not  in  a  position 
to  choose  wisely.  Popular  inclination  is  too  apt  to  be 
swayed  by  other  than  scientific  reasons.  Such  a 
method  may  shut  out  absolute  ignorance  from  office ; 
it  will  not,  however,  usually  result  in  the  choice  of  the 
best  man  for  the  office. 

//. —  The  law  of  elections  in  the  United  States^ 

The  general  rule  is  that  the  legislature  may,  in  the 
absence  of  constitutional  provision  either  granting  or 
denying  the  power,  pass  reasonable  regulations  as  to 
the  method  of  holding  elections.^  In  the  exercise  of 
this  power  the  legislatures  have  very  generally  provided 
for  the  registration  of  voters  as  a  necessary  prerequi- 
site to  the  casting  of  their  votes.  In  two  of  the  com- 
monwealths,   however,   registration    laws   have    been 

^  Supra,  I.,  p.  2IO. 

'  The  qualifications  of  voters  are  a  matter  rather  of  constitutional  than  of 
administrative  law,  and  therefore  will  not  be  considered.  For  particulars  see 
McCrary,  The  Law  of  Elections,  3d  Ed.,  sees.  I-2I. 

^  Commonwealth  v.  McClelland,  83  Kentucky,  686.  This  power  is  expressly 
granted  in  many  of  the  constitutions.     Stimsou,  op.  cit.,  sec.  235. 


FORMATION  OF  THE  OFFICIAL  RELATION.    19 

expressly  forbidden,  viz.^  Arkansas  and  Texas,  while  in 
two  others  the  provisions  of  the  constitution  are  such 
as  to  render  them  practically  nugatory.  These  are 
Pennsylvania  and  West  Virginia,  where  no  person 
may  be  deprived  of  his  right  to  vote  by  reason  of  not 
having  registered.^  Such  registration  laws  have  been 
held  to  be  reasonable  regulations,  and,  as  such,  per- 
fectly constitutional  ^ ;  but  a  law  which  provides  a 
method  of  voting  by  which  it  is  impossible  for  an  illit- 
erate person  to  vote  is  not  reasonable,  and  is  therefore 
unconstitutional.^  As  a  general  thing,  election  regula- 
tions are  directory  rather  than  mandatory,  and  their 
violation,  provided  the  will  of  the  people  is  clearly  ex- 
pressed, will  not  invalidate  the  election.* 

The  general  rules  with  regard  to  elections  are : 

1.  The  election  must  he  regular. — Elections  must 
always  be  held  at  the  time  and  place  appointed  by  the 
proper  authority.^  This  authority  may  be  the  consti- 
tution, a  statute,  or  an  administrative  act.^  The  action 
of  the  proper  agency  is  necessary,  and  if  the  holding 
of  the  election  is  contingent  upon  the  happening  of 
some  event,  that  event  must  have  happened.^ 

2.  Necessity  of  notice. — Notice  of  the  time  of  elec- 
tions does  not  seem  to  be  necessary,  even  when  ex- 
pressly required  by  statute,  except  where  such  notice 
is  in  the  nature  of  things  necessary  in  order  that  the 
voter  may  know  that  an  election  is  to  take  place.     Its 

*  Stimson,  op.  cii.,  sec.  236. 

'  Commonwealth  v.  McClelland,  83  Kentucky,  686. 
3  Rogers  v.  Jacobs,  ii  S.  W.  Rep.,  513. 

*  Trimmer  v.  Bomar,  20  S.  C,  354. 

*  Mechem,  op.  cit.,  sec.  170. 

^  Brodhead  v.    Milwaukee,    19  Wis.,   624;    Brewer  v.    t)avis,   9  Humph. 
Tenn.,  208. 

'  Stephens  v.  People,  8g  111.,  337. 


20  THE  LA  W  OF  OFFICERS, 

absence  will  not  necessarily  invalidate  an  election,  even 
if  it  has  been  expressly  required.  Thus  the  failure  to 
give  notice  of  a  general  election,  though  required  by 
law,  will  not  invalidate  the  election/  But  a  special 
election  would  not  be  regarded  as  valid  in  case  no 
notice  of  it  was  given.^  While  notice  of  the  time  of 
elections  is  not  always  necessary,  notice  of  the  place  of 
holding  the  election  seems  to  be  absolutely  necessary ; 
indeed  all  enactments  as  to  the  place  of  elections  are 
regarded  as  mandatory  rather  than  directory.  Failure 
to  observe  them  will  generally  invalidate  the  election.^ 
It  has  been  held,  however,  that  in  a  case  of  an  emergency 
the  place  may  be  reasonably  changed  provided  notice 
is  given.* 

3.  Method  of  voting  (ballot). — As  a  general 
thing  the  vote  must  be  by  ballot.^  The  word  ballot 
originally  meant  a  little  ball  by  the  casting  of 
which  it  was  at  first  proposed  that  the  vote  should 
be  taken,^  but  it  has  come  to  mean  in  public  law  a 
slip  of  paper,  sometimes  called  a  voting  paper,  on 
which  the  name  of  the  candidate  to  be  voted  for  is 
printed  or  written.  As  the  main  object  of  the  ballot 
is  a  secret  vote  ^  the  statutes  regulating  the  ballot  have 
in  the  course  of  time  gone  more  and  more  into  detail 
as  to  the  form,  appearance,  and  manner  of  folding  the 
ballot,  each  statute  endeavoring  to  remedy  some  defect 

'  People  V.  Hartwell,  12  Mich.,  508  ;  People  v.  Cowles,  13  N.  Y.,  350. 

*  Secord  v.  Foutch,  44  Mich.,   89  ;  State  v.  Gloucester,   44  N.  J.  L.,  137  ; 
Mechem,  op.  cit.,  sec.  176. 

3  Melvin's  Case,  68  Pa.  St.,  333. 

*  Brodhead  v.  Milwaukee,   19  Wis.,  624  ;  Dale  v.  Irwin,  78  111.,  170,  181 ; 
Farrington  v.  Turner,  53  Mich.,  27  ;  Knowles  v.  Yeates,  31  Cal.,  82. 

**  Stimson,  op.  cit.,  sec.  231. 

*  Theodore  W.  Dwight,  on  "  Harrington,"  in  Pol.  Set.  Qu.,  II.,  16. 
'  Cf.  Cooley,  Constitutional  Limitations,  6th  Ed.,  760. 


FORMATION  OF  THE  OFFICIAL  RELATION.    21 

that  had  manifested  itself,  and  by  which  the  secrecy  of 
the  ballot  was  violated,  until  now  the  most  common 
method  of  voting  in  the  United  States  is  by  means  of 
ballots  absolutely  uniform  in  appearance  and  size,  hav- 
ing no  marks  upon  them  by  means  of  which  they  may 
be  distinguished  one  from  the  other  when  folded. 
These  ballots  are  in  many  cases  issued  by  officers  of 
the  government,  and  are  printed  at  the  expense  of  the 
government.  A  further  result  of  the  great  desire  for 
secrecy  in  voting  is  to  be  found  in  the  fact  that  the 
courts  in  their  decisions  have  aided  the  legislature,  in 
stamping  as  an  illegal  ballot,  and  therefore  as  a  ballot 
which  may  not  be  counted,  any  ballot  which  violates, 
in  what  at  times  seems  only  an  unimportant  point,  the 
provisions  of  the  statutes  requiring  secrecy.^  The  only 
other  rule  of  importance  as  to  the  ballot  is  that  requir- 
ing that  it  shall  express  clearly  the  intent  of  the  voter. 
This  rule,  however,  the  courts  do  not  carry  so  far  as  to 
throw  out  ballots  for  trifling  irregularities.^  In  case 
the  ballot  is  not  clear  on  its  face  the  best  rule  would 
seem  to  be  that  the  courts  may  consider  extrinsic  evi- 
dence in  explanation  of  it.^  The  ballots,  after  they 
have  been  cast,  are  counted  by  officers  called  can- 
vassers, whose  duties  are  usually  ministerial  in  char- 
acter,* and  who,  after  they  have  once  acted,  have 
exhausted  their  powers  and  are  not  allowed  to  change 
their  decision  except  as  ordered  by  the  courts.^ 

4.    Wliat  constitutes  an  election  to  office, — As  a  gen- 
eral thing  a  candidate  is  elected  to  office  by  a  plurality  ^ 

*  Mechem,  op.  cit.^  sees.  192-4. 

*  Ibid.y  sees.  195-202. 

*  Cooley,   Constitutional  Limitations,  6th  Ed.,  768  ;  People  v.  Pease,  27  N. 
Y.,  45.  84.  '  Hadley  V.  Albany,  33  N.  Y.,  603. 

*  Mechem,  op.  cit.,  see.  208.  *  Stimson,  op.  cit.,  see.  232. 


22  THE  LA  W  OF  OFFICERS. 

of  the  legal  ballots  cast,  even  though  a  majority  of  legal 
voters  have  not  voted.*  In  the  leading  case  of  People 
V.  Clute  it  was  held,  that  a  majority  of  votes  cast  for 
an  ineligible  candidate,  if  the  ineligibility  vrere  not 
notorious,  invalidated  the  election ;  that  such  votes 
were  not  to  be  regarded  as  merely  illegal  votes  with 
the  result  that  the  candidate  having  the  next  highest 
number  of  votes  would  be  elected.  This  seems  to  be 
the  better  rule  in  the  United  States.' 

///. —  The  law  of  appointment. 

The  courts  have  sometimes  attempted  to  hold  in 
the  United  States  that  as  the  act  of  appointment  is  in 
its  nature  an  essentially  executive  act,  the  exercise  of 
the  appointing  power  by  any  other  than  an  executive 
or  administrative  authority  is  unconstitutional  in  a 
state  whose  constitution  provides  for  the  separation  of 
powers  ^ ;  but  the  difference  as  to  the  adoption  in  the 
constitutions  of  the  various  commonwealths  of  the 
principle  of  the  separation  of  powers,  and  the  different 
views  held  by  the  judges  as  to  the  meaning  of  the 
principle  of  the  separation  of  powers  when  adopted 
have  brought  it  about  that  this  rule  is  not  at  all  uni- 
versal.* As  to  what  constitutes  an  appointment  the 
best  rule  would  seem  to  be  that  it  consists  in  the  choice 
by  the  appointing  power  of  the  person  appointed  5; 
and  is  complete  when  the  last  act  of  the  appointing 
power  has  been  performed,  as  e,  g,  in  the  case  where 

*  People  V.  Clute,  50  N.  Y.,  451. 

^  Mechem,  op,  cit.,  sec.  206. 

^  State  V.  Denny,  118  Ind.,  449  ;  Evansville  v.  State,  Ibid.^  426  ;  see  also 
State  V.  Kennon,  7  Ohio  St.,  546,  560. 

^  See  Mayo  v.  State,  15  Md.,  376  ;  People  v.  Mahany,  13  Mich.,  481  ;  People 
V.  Hurlburt,  24  Mich.,  44,  63. 

"  Johnston  v.  Wilson,  2  N.  H.,  202. 


FORMATION  OF  THE  OFFICIAL  RELATION,    23 

the  consent  of  some  other  authority  than  the  one  pro- 
posing the  appointment  is  necessary,  in  the  grant  of 
the  consent  of  that  body/  Finally,  in  the  absence  of 
any  statutory  provision  to  the  contrary,  the  completion 
of  the  appointment  is  not  dependent  upon  the  issue  of 
any  commission,  which  is  merely  evidence  of  the  ap- 
pointment and  is  not  the  appointment  itself.^  Thus  if 
the  commission  has  been  issued  to  the  wrong  person 
it  may  be  revoked  and  a  commission  granted  to  the 
proper  person.^  It  is  not  as  yet  well  settled  in  what 
form  the  appointment  is  to  be  made,  whether  it  must 
be  made  in  writing  or  whether  an  oral  appointment 
is  sufficient/  But  the  power  however  exercised,  once 
exercised,  is  exhausted  and  the  appointing  power  may 
not  revoke  the  appointment,  provided  of  course  that 
the  term  of  the  appointee  is  not  in  the  discretion  of 
the  appointing  officer,  when  of  course  the  appointee 
might  be  removed  from  office,  and  provided  that  there 
has  not  been  some  mistake  in  the  issue  of  the  commis- 
sion.^ 

IV. — Acceptance  of  the  office. 

While  as  a  general  thing  no  obligation  to  assume 
a  professional  office  is  imposed  upon  its  citizens  by  any 
government,^  it  is  not  unfrequently  the  case  that  the 
law  compels  the  citizen  to  take  an   honorary   office 

*  State  V.  Barbour,  53  Conn.,  76  ;  Marbury  v.  Madison,  i  Cranch,  137. 
'  Ibid. ;   Mechem,  op.  cit.,  sec.  117, 

'  Gulick  V.  New,  14  Ind.,  93  ;  State  v.  Capens,  37  La.  Ann.,  747. 

*  Cf.  People  V.  Murray,  70  N.  Y.,  521,  which  holds  that  the  appointment 
must,  in  the  absence  of  statutory  provision  to  the  contrary,  be  in  writing,  with 
Hoke  V.  Field,  10  Bush,  K'y.,  144,  which  holds  that  it  may  be  made  orally. 

^  People  V.  Woodruff,  32  N.  Y.,  355  ;  State  v.  Barbour,  53  Conn.,  76  ;  Gulick 
V.  New,  14  Ind.,  93. 

^  Cf.  Hinze  v.  People,  92  111.,  406,  in  which  the  judge  says  that  no  man  can 
be  compelled  to  assume  a  professional  office. 


24  THE  LA  W  OF  OFFICERS. 

whose  duties  are  not  so  arduous  as  to  require  the 
entire  time  of  the  incumbent.  This  seems  to  have  been 
the  original  rule  in  England,  where  acceptance  of  a 
municipal  office  might  be  compelled  by  means  of  the 
writ  of  mandamus/  and  where  failure  to  assume  office 
might  generally  be  punished  by  indictment.'^  The 
strictness  of  this  rule  has  been  somewhat  relaxed  in 
this  country,  where  the  rule  has  been  retained.  Thus 
where  the  office  is  in  any  sense  obligatory,  relief  from 
the  operation  of  the  rule  may  be  obtained  by  the  pay- 
ment of  a  fine,  which  in  some  cases,  as  e.  g.  in  the  case 
of  the  office  of  supervisor  in  New  York,  has  been  as 
high  as  $50.  Even  in  these  cases  the  law  generally 
states  that  certain  excuses  are  sufficient  to  relieve  from 
service,  large  discretion  in  the  matter  of  accepting  an 
excuse  being  usually  granted. 

Further  it  has  been  held  that  the  holding  of  one 
office  will  relieve  from  the  obligation  of  accepting 
another.^  Finally  where  acceptance  of  the  office  is  not 
obligatory  some  formality  indicative  of  the  intention 
to  assume  the  office  seems  to  be  necessary  in  order  that 
the  office  may  be  regarded  as  filled.*  Qualifying  for 
the  office  is  regarded  as  the  best  evidence  of  accept- 
ance.5  Refusal,  and  neglect  to  qualify  will  be  regarded 
as  a  refusal,  will  operate  to  extinguish  any  right  which 
the  officer  has  to  the  office  ;  although  mere  delay  will 
not  have  this  effect.^ 

In  France  it  is  almost  never  the  case  that  the  accept- 
ance  of  office  is  obligatory.     In  Germany  the  rule  is 

'  Rex  V.  Bower,  i  B.  &  C,  585. 
'See State  V.  Ferguson,  31  N.  J.  L.,  107. 
'  Hartford  v.  Bennett,  10  Ohio  St.,  441. 

*  Johnston  V.  Wilson,  2   N.    H.,   202;    Smith  v.  Moore,  90  Ind.,  294,  306, 
313.  ^  Ibid.  ®  Mechem,  op.  cit.,  sees.  266,  433,  434. 


FORMATION  OF  THE  OFFICIAL  RELATION.    25 

very  much  the  same  as  in  the  United  States,  but 
where  the  obligation  to  serve  does  exist,  the  penalty 
for  refusal  to  serve  is  much  more  severe.^  In  England 
the  old  rule  of  obligatory  service  has  been  much  modi- 
fied. Much  more  reliance  is  placed  on  voluntaryism 
than  formerly.  There  are  still,  however,  instances  of 
obligatory  official  service,  as  e,  g,  in  the  municipal 
service  where  most  of  the  unpaid  municipal  offices  are 
obligatory.^ 

V. — Officers  de  facto. 

While  it  is  in  general  true  that  the  official  relation 
can  be  formed  only  in  one  of  the  ways  recognized  by 
the  law,  and  that  the  acts  of  persons  who  without 
right  intrude  into  offices  are  absolutely  void  both  as 
against  the  public  and  third  persons,  it  is  also  a  gen- 
eral principle  of  the  English  common  law,  based  upon 
reasons  of  public  convenience,  that  persons  who,  though 
not  legally  officers,  have  yet  acted  under  color  of  right, 
L  €.  have  been  declared  elected  or  appointed  or  have 
held  over  in  office  in  good  faith,  or  whose  assumption 
of  office  has  been  for  a  long  time  acquiesced  in  by  the 
public,  are  regarded  for  many  purposes  as  officers  ;  and 
that  their  acts  will  be  given  the  same  faith  and  credit 
as  the  acts  of  de  jure  officers.  Such  persons  are  called 
officers  de  fcvcto}  It  has,  however,  been  held  that  an 
office  must  be  originally  established  by  law,  i,  e.  that 
while  there  may  be  an  officer  de  facto  there  can  never 
be  an  office  de  factor  One  result  of  this  rule  as  to  the 
acts  of  officers  de  facto  is  that  such  acts  may  not,  any 

^  Supra,  I.,  p.  327.  2  Supra,  I.,  p.  255. 

'  See  Plymouth  v.  Painter,  17  Conn.,  585  ;  Hamlin  v.  Kassafer,  15  Oregon, 
465  ;  State  v.  Carroll,  38  Conn.,  449  and  cases  cited. 
*  Norton  v.  Shelby  Co.,  it8  U.  S.,  425,  442. 


26      .  THE  LAW  OF  OFFICERS. 

more  than  the  acts  of  officers  dejure,  be  impeached  in 
a  collateral  proceeding  to  which  the  officer  is  not  a 
pai*ty.^  This  is  not,  however,  true  of  the  acts  of  mere 
intruders  because  their  acts  are  absolutely  void.  ^ 
Indeed  the  mere  intrusion  into  an  office  without  color 
of  right  cannot  be  said  to  result  in  any  of  the  incidents 
of  the  official  relation  with  the  exception  that  the 
intruder  may  be  forced  by  the  government  to  account 
for  moneys  which  he  may  have  received.^  While  for 
reasons  of  public  convenience  the  acts  of  officers  de 
facto  are  given  in  collateral  proceedings  the  same  force 
and  credit  as  are  given  to  the  acts  of  officers  de  jure 
this  rule  is  not  so  applied  as  to  permit  an  officer  de 
facto  to  build  up  any  claims  for  himself  from  the  fact 
that  he  has  assumed  office.  Thus  he  cannot  recover 
compensation,*  nor  may  he  bring  action  in  his  official 
capacity  without  showing  title,^  nor  may  he,  when  sued, 
escape  responsibility  for  an  act  which  may  be  justified 
only  by  a  valid  title  to  the  office.^  A  further  result  of 
this  position  of  officers  de  facto  is  that  they  are  liable 
for  damages  resulting  from  their  negligence,''  must  per- 
form all  the  duties  connected  with  the  office  duiing 
the  time  they  assume  to  hold  it^  and  may  be  punished 
criminally  for  the  commission  of  official  crimes.^ 

•  Ibid. ;  People  v.  Hopson,  i  Denio,  N.  Y.,  574,  579. 

'^  See  Conway  v.  City  of  St.  Louis,  9  Mo.  Appeals,  488. 

•  See  U.  S.  V.  Maurice,  2  Brock.  U.  S.,  96. 

•  People  V.  Tieman,  30 Barb.  N.  Y.,  193  ;  Dolan  v.  the  Mayor,  etc.,  68  N.  Y., 
274. 

5  People  V.  Weber,  89  111.,  347. 

•  Green  V.  Burke,  23  Wendell  N.  Y.,  490-503  ;  Riddle  v.  Bradford,  7  S.  &  R. 
Pa.,  386,  392  ;  Rodman  v.  Harcourt,  4  B.  Mon.  K'y,  224,  229  ;  Patterson  v. 
Miller,  2  Mete.  K'y,  493,  496. 

'  Longacre  v.  State,  3  Miss.,  637. 
®  Kelly  V.  Wimberly,  61  Miss.,  548. 

•  Diggs  V.  State,  49  Ala.,  311  ;  State  v.  Goss,  69  Me.,  22  ;  see  also  Mechem, 
cp.  cit.,  sees.  315-346. 


CHAPTER  III. 

QUALIFICATIONS    FOE   OFFICE. 

/. — Elective  officers, 

1.  Right  to  provide  qualifications. — Nowhere  does 
the  law  permit  any  one  and  every  one  to  hold  offices. 
In  all  countries  certain  qualifications  of  eligibility  for 
office  are  prescribed.  For  the  power  to  hold  office  is 
not  generally  a  right  guaranteed  by  the  constitution, 
but  rather  a  privilege  usually  granted  to  all  electors  or 
citizens  but  sometimes  granted  to  persons  who  are 
neither  citizens  nor  electors  and  sometimes  not  to  all 
electors  or  citizens,  and  in  all  cases  subject  to  the  regu- 
lation of  the  legislature  in  the  absence  of  constitutional 
restriction.^  As  a  general  thing  in  the  United  States 
it  is  held,  either  as  the  result  of  a  direct  constitutional 
provision  or  as  a  result  of  the  interpretation  put  by  the 
courts  upon  certain  general  constitutional  provisions, 
that  political  and  religious  opinions  may  not  be  made 
a  test.  Thus  it  has  been  held  that  it  is  not  within  the 
power  of  the  legislature  to  provide  that  two  members 
of  a  board  of  four  members  shall  be  chosen  from  each 
of  the  two  leading  political  parties.'^  . 

^  See  Ohio  v.  Covington,  29  Ohio  St.,  102,  holding  that  an  educational  quali- 
fication is  proper  ;  Darrow  v.  People,  8  Col.,  417,  holding  that  a  property 
qualification  is  proper  ;  cf.  Barker  v.  People,  3  Cowen  N.  Y.,  686. 

'  Evansville  v.  State,  n8  Ind.,  426,  435  ;  People  v.  Hurlburt,  24  Mich.,  44, 
93  ;  Attorney  General  v.  Detroit  Common  Council,  58  Mich,,  213,  215.     See 

37 


28  THE  LAW  OF  OFFICERS. 

2.  Usual  qualifications, — The  qualifications  which 
have  been  established  for  elective  officers  are  in  all 
countries  pretty  much  the  same.  They  consist  for  the 
most  part  in  citizenship  or  the  right  to  vote/  the  attain- 
ment of  a  certain  age,  the  possession  of  good  character/ 
and  for  the  majority  of  offices  the  possession  of  the 
male  sex.  This  is  not  generally  the  case  in  the  United 
States  for  school  offices,  and  in  some  commonwealths, 
as  e.  g.  Kansas,  is  not  the  case  for  municipal  offices.^ 
In  the  absence  of  special  statutory  provision  as  to  the 
eligibility  of  women  there  is  no  fixed  and  universal 
rule  as  to  the  matter  in  the  United  States.  In  Hohin- 
son^s  Case^  it  is  said  that  the  male  sex  is  required 
where  no  provision  as  to  the  eligibility  of  women 
exists,  though  it  is  admitted  there  is  no  constitutional 
objection  to  their  being  made  eligible  by  statute.^  On 
the  other  hand  the  contrary  rule,  viz.,  that  women  are 
eligible  in  the  absence  of  statutory  provision,  seems  to 
be  held  in  In  re  Hall.^  For  local  officers,  further,  resi- 
dence in  the  locality  in  which  the  duties  of  the  office 
are  to  be  performed,  or  some  equivalent  therefor,  is 

also  Mayor  v.  State,  15  Maryland,  376,  468.  But  see  Rogers  v.  Buffalo,  123 
N.  Y.,  173,  which  holds  that  a  law  providing  that  not  more  than  two  members 
of  a  board  shall  belong  to  the  same  political  party  is  perfectly  proper.  In 
some  of  these  cases  the  decision  of  the  court  was  to  a  certain  extent  influenced  by 
the  fact  that  it  was  impossible  for  the  court  to  decide  whether  a  person  belonged 
to  one  of  the  leading  political  parties. 

'  See  State  v.  Smith,  14  Wis.,  497  ;  State  v.  Murray,  28  Wis.,  96  ;  State  v. 
Trumpf,  50  Wis.,  103.  But  see  In  the  matter  of  Ole  Mosness,  39  Wis,,  509, 
511,  where  the  court  says  that  extra-territorial  officers,  as  e.g.  commissioners,  to 
take  acknowledgments,  need  not  be  citizens  or  electors. 

^  See  Mechem,  op.  cit.,  sees.  77-80,  particularly  for  the  usual  disqualification 
resulting  from  conviction  for  crime. 

'  For  a  summary  of  the  rules  with  regard  to  the  eligibility  of  women  to  office 
see  M.  Ostrogorski  in  the  Political  Science  Quarterly,  VI.,  677. 

*  131  Mass.,  376,  383. 

"  See  115  Mass.,  602,  and  Huff  v.  Cook,  44  Iowa,  339. 

•  50  Conn.,  131. 


QUALIFICATIONS  FOR   OFFICE.  29 

generally  required.  Finally  the  possession  of  real 
property  is  often  required,  particularly  in  the  case  of 
local  offices.  This  last  qualification  is  more  common  in 
Europe  than  in  the  United  States.^  In  the  case  of 
offices  of  a  technical  or  professional  character  the  law 
usually  requires  that  the  candidate  must  have  under- 
gone some  training  or  possess  some  degree  or  certificate. 
Thus  no  one  but  an  engineer  by  profession  may  be 
elected  to  the  position  of  state  engineer  and  surveyor 
in  New  York.^  Further  where  judges  and  prosecuting 
officers  are  elected  by  the  people  it  is  usually  provided 
that  the  candidate  for  such  positions  shall  be  a  coun- 
sellor at  law  of  a  certain  number  of  years'  standing.^ 
Finally  in  many  cases  the  possession  of  one  office  will 
disqualify  for  others."*  There  is  not  absolute  agreement 
in  the  decisions  as  to  when  the  qualifications  required 
by  law  must  exist,  some  decisions  holding  that  they 
must  exist  at  the  time  of  the  election  ^ ;  others  holding 
that  it  is  sufficient  if  they  are  present  at  the  beginning 
of  the  term  of  office,  holding  that  the  qualification  is 
not  one  for  election,  but  for  holding  office.^ 

//. — Appointed  officers  in  the  United  States. 

For  appointed  officers  the  qualifications  differ  con- 
siderably in  the  different  countries  and  in  many  cases 

*  See  Mechem,  op.  cii.,  sec.  81,  and  Darrow  v.  People,  8  Col.,  417 ;  supra^ 
I.,  p.  320. 

'Constitution,  art.  v.,  sec.  2. 

^  See  People  v.  May,  3  Mich.,  598. 

4  See  People  v.  Clute,  50  N.  Y.,  451  ;  infra,  II.,  p.  96. 

'Searcy  v.  Grow,  15  Cal.,  117,  followed  by  the  later  decisions  in  that  com- 
monwealth; Parker  v.  Smith,  3  Minn.,  240;  State  v.  Clark,  3  Nev.,  519; 
State  V.  McMillen,  23  Neb.,  385. 

^  State  V.  Murray,  28  Wis.,  96;  State  v.  Trumpf,  50  Wis.,  103  ;  Smith  v. 
Moore,  90  Ind.,  294  ;  Privett  v.  Bickford,  26  Kan.,  52.  Some  of  the  later 
Wisconsin  cases  hold  to  this  rule  only  on  the  ground  of  stare  decisis,  and 
recognize  that  the  other  rule  is  the  better  one. 


3©  THE  LA  W  OF  OFFICERS. 

are  mucli  more  stringent  than  are  those  for  elective 
offices. 

1.  General  qualifications, — The  first  of  the  general 
qualifications  for  appointment  to  office  in  the  United 
States  is  the  possession  of  citizenship  or  the  right  to 
vote.  This  does  not,  however,  appear  to  be  the  univer- 
sal rule.  There  is  nothing  in  the  statutes  of  the 
United  States  national  government  absolutely  decisive 
on  the  point.  The  United  States  Revised  Statutes 
which  govern  the  form  of  the  official  oath  ^  seem  to 
presuppose  that  citizenship  is  necessary  but  nowhere 
is  it  expressly  required.  The  civil-service  law  of 
1883  does  not  require  citizenship  but  general  rule 
III  ^  passed  in  execution  of  the  law  would  seem  to  re- 
quire citizenship  for  the  classified  service.  In  New 
York  also  civil-service  rule  35  requires  citizenship  for 
the  classified  service,  and  in  Massachusetts  it  would 
seem  to  be  required  for  all  positions  in  the  service  ex- 
cept expert  positions.^  But  apart  from  these  provisions 
the  law  does  not  seem  to  be  explicit  on  this  point; 
and  it  is  well  known  that  many  positions  in  the  diplo- 
matic and  consular  services  are  filled  by  persons  who 
are  not  citizens  of  the  United  States.  A  qualification 
akin  to  that  of  citizenship  is  that  of  residence.  In 
New  York  and  Massachusetts  the  rules  require  a  resi- 
dence in  the  commonwealth  of  one  year  for  positions 
in  the  classified  service.*  In  the  national  service  there 
is  a  peculiar  rule  for  the  classified  departmental  ser- 
vice. This  is  5  that  appointments  to  the  classified  pub- 
lic service  at  Washington  shall  be  apportioned  among 

^  Sees.  1756-7.  2  Sec.  8.  ^  Civil-Service  Rule  VII.,  i. 

*  N.  Y.  Rule  35  ;  Mass.  Rule  VII.,  i,  which  requires  it  for  all  positions  in  the 
service  with  the  exception  of  expert  positions. 

'Civil-Service  Law,  sec.  2,  third  ;  Departmental  Rule  VII.,  2. 


QUALIFICATIONS  FOR  OFFICE.  31 

the  common  wealths,  territories,  and  the  District  of 
Columbia  in  accordance  with  their  population  as  fixed 
by  the  last  census.  This  rule  has  been  regarded  by  some 
of  the  best  administrative  officers  of  the  government 
as  a  detriment  to  the  service  and  is  from  the  point  of 
view  of  administrative  science  absurd  in  the  extreme. 

The  next  general  qualification  is  to  be  found  in  the 
limits  of  age  at  which  entrance  into  the  service  is  al- 
lowed. The  purpose  of  these  provisions  is  to  exclude 
the  too  young  and  the  too  old.  The  limits  of  age  vary 
with  the  particular  branch  of  the  service  from  a  mini- 
mum of  sixteen  for  the  position  of  junior  clerk  in  the 
classified  postal  service  to  a  maximum  of  fifty  for  the 
position  of  superintendent  in  the  classified  Indian  ser- 
vice.* Generally,  however,  all  persons  between  the 
ages  of  twenty  and  forty-five  may  enter  the  classified 
service.  In  New  York  the  limits  of  age  are  fixed  by 
the  civil-service  commission  after  consultation  with 
the  heads  of  departments,  differences  between  the  two 
being  settled  by  the  governor.^  These  vary  from  a 
minimum  of  eighteen  for  messengers  to  a  maximum  of 
fifty  for  clerical  positions.^  In  the  United  States  na- 
tional, the  New  York  service,  and  the  Massachusetts 
service  these  limitations  do  not  apply  to  persons  who 
have  been  honorably  discharged  from  the  military  or 
naval  services  of  the  United  States.  Such  persons  it 
is  well  to  note  are  always  to  be  preferred  by  the  ap- 
pointing officers.-* 

»  Postal  Rule  II.,  2  ;  Indian  Rule  II. 

'  N.  Y.  Rule  24 ;  cf.  Massachusetts  Rule  X.  which  requires  a  certain  age 
only  for  certain  branches  of  work. 

'  See  sixth  report  of  the  New  York  civil-service  commission,  464.  See  also 
Mechem,  op.  cii.,  sec.  71. 

*  U.  S.  L.  1883,  c.  27,  sec.  7 ;  N.  Y.  L.  1884,  ch.  410 ;  Mass.  L.  1887,  ch. 
437  »  ^f'  Mechem,  op.  cit.^  sec.  84,  especially  for  the  decisions  in  construction 
and  application  of  these  laws. 


32  THE  LAW  OF  OFFICERS. 

The  third  general  qualification  is  to  be  found  in  the 
possession  of  good  character.  The  civil  service  laws 
very  generally  provide  in  addition  to  the  usual  dis- 
qualification for  conviction  of  crime'  that  no  person 
shall  be  appointed  to  office  who  habitually  uses  intox- 
icating beverages  to  excess,  while  the  Massachusetts 
law  also  disqualifies  all  liquor  sellers.^  The  rules  also 
generally  provide  that  no  person  shall  be  appointed  in 
the  classified  service  who  has  been  guilty  of  a  crime  or 
of  notoriously  disgraceful  or  infamous  conduct.^  Fi- 
nally it  is  provided  in  the  rules  generally  that  certificates 
of  good  moral  character  shall  be  presented  at  the  time 
that  the  application  for  appointment  is  made,  and  that 
when  such  recommendations  are  made  by  public  offi- 
cers, especially  by  legislative  officers,  no  part  of  such 
recommendation,  except  such  as  bears  upon  the  char- 
acter of  the  applicant,  shall  be  considered  by  the 
appointing  officer.* 

Finally  it  is  to  be  noticed  that  the  male  sfex  is  not 
generally  required  for  appointed  officers.  Thus  it  has 
been  held  or  intimated  that  a  woman  may  be  appointed 
to  the  position  of  postmistress  and  pension  agent,^  to 
that  of  deputy  clerk,^  and  to  that  of  master  in  chancery.^ 
Further  the  rules  in  the  United  States  national  service 
and  in  the  Massachusetts  service  seem  to  presuppose 
that  women  will  be  appointed.^ 

'  For  this  see  Mechem,  op.  cit.,  sees.  77-80. 
^  U.  S.  L.  1883,  c.  27,  sec.  8  ;  Mass.  L.  1884,  c.  320,  sec.  4. 
3  U.  S.  Gen.  Rule  IV.,  2,  III.,  8  ;  N.  Y.  Rule  ro  ;  Mass.  L.  1884,  c.  320, 
sec.  4. 

*  U.  S.  L.  1883,  c.  27,  sec.  10  ;  N.  Y.  L.  1883,  c.  354,  sec.  9. 

^  In  re  Hall,  50  Conn.,  131,  137. 

"  Jeffries  v.  Harrington,  i7Pac.  Rep.  (Col.),  505. 

'  Schuchardt  v.  People,  99  111.,  501. 

8  U.  S.  Department  Rule  VII.,  i,  b  ;  Massachusetts  Rule  XI.,  2. 


QUALIFICATIONS  FOR  OFFICE.  33 

2.  Intellectual  capacity, — The  most  important  quali- 
fication for  appointed  officers  is  that  of  capacity,  which 
may  be  either  physical  or  intellectual.  Physical  ca- 
pacity, when  required,  is  to  be  shown  either  by  certifi- 
cates of  persons  acquainted  with  the  applicant  or 
of  physicians,^  or  by  examinations  made  either  by  a 
physician  or  in  the  nature  of  tests  requiring  unusual 
strength  or  agility,  as  e,  g.  the  positions  in  the  police 
and  fire  services  of  the  cities  or  in  the  national  revenue 
marine  service.  Sometime,  and  generally  in  order  to 
be  qualified  for  these  positions,  the  applicant  must  be 
of  a  certain  weight,  a  certain  height,  etc.,  etc} 

Originally  there  seem  to  have  been  really  no  legal 
requirements  as  to  intellectual  capacity  in  the  United 
States  for  appointed  officers.  The  earliest  instance  of 
qualifications  for  capacity  in  the  English  law  is  said 
to  be  found  in  the  case  of  the  office  of  the  sheriff  of 
London.  In  order  to  be  qualified  for  this  position,  the 
candidate  was,  in  a  time  when  the  arithmetical  capacity 
of  the  ordinary  man  was  not  great,  obliged  to  count 
six  horse-shoes  and  sixty-one  nails.  To  prove  physical 
capacity  the  candidate  was  obliged  to  cut  a  bundle  of 
sticks.  While  this  severe  test  of  intellectual  capacity 
has  fallen  into  disuse,  it  is  said  that  it  is  still  neces- 
sary for  the  candidate  for  the  office  of  sheriff  in  London 
to  cut  the  bundle  of  sticks  which  now  consists  of  a 
bundle  of  matches.^  It  was  believed  in  the  United 
States  that  the  officers  to  whom  the  power  of  appoint- 
ment   had    been  given,  would  of  their  own   accord 

»  U.  S.  Gen.  Rule  III.,  8  ;  N.  Y.  Rule  10  ;  Mass.  Rule  XII. 

'See  Massachusetts  Rule  X.,  XXII.;  Comstock,  The  Civil  Service  of  the 
United  States,  578  et  seq.,  582. 

^  See  Peck  v.  Rochester,  3  N.  Y.,  Sup.,  872,  citing  Hare,  Walks  in  London^ 
N.  Y.  Ed.,  II.,  272,  273. 

VOL.  I  J— 3 


34  THE  LAW  OF  OFFICERS. 

choose  the  best  men  that  they  could  obtain.  With 
the  growth  of  party  government,  partisan  rather  than 
administrative  considerations  came  in  many  cases  to 
govern  the  action  of  the  appointing  officers,  both  in 
the  national  and  the  commonwealth  governments.  The 
natural  result  of  such  a  practice  was  a  deterioration  in 
the  character  of  appointees;  and  as  early  as  1853  the 
attempt  was  made  by  Congress  to  prevent  the  appoint- 
ment of  absolutely  incapable  persons  by  providing  that 
all  appointees  must  pass  an  examination  before  they 
might  enter  the  clerical  service  at  Washington,  which 
was  divided  at  about  the  same  time  into  classes,  whence 
the  name  of  classified  service.  This  pass  examination 
was  to  be  conducted  by  officers  of  the  departments  to 
which  the  law  applied.  The  plan  was  not  successful 
when  put  into  operation,  but  nothing  further  was  done 
until  1870,  when  President  Grant,  in  his  message  to 
Congress  of  that  year,  advocated  the  adoption  of  a' 
system  of  competitive  examinations.  The  result  of  the 
message  was  the  passage  of  a  law,  now  partly  incor- 
porated into  the  revised  statutes,  which  authorized 
the  President  to  prescribe  such  regulations  for  the  ad- 
mission of  persons  into  the  civil  service  of  the  United 
States  as  would  best  promote  its  efficiency  and  ascertain 
the  fitness  of  each  person  in  respect  to  age,  health,  char- 
acter, knowledge,  and  ability  for  the  branch  of  the 
service  into  which  he  sought  to  enter.  For  this  pur- 
pose the  President  was  authorized  to  appoint  suitable 
persons  to  conduct  the  examinations  which  it  was  in- 
tended to  establish.  The  President  issued  a  set  of 
rules  and  appointed  a  commission.  The  system  of 
competitive  examinations  went  into  effect,  and  accord- 
ing to  the  statements  of  the  highest  administrative 


QUALIFICATIONS  FOR  OFFICE.  35 

officers  of  the  government  proved  eminently  successful. 
But  in  1874  Congress,  in  which  from  the  first  there 
had  been  considerable  opposition  to  the  system,  refused 
to  make  the  necessary  appropriations  to  carry  on  the 
V70rk  of  the  commission,  and  the  rules  generally  ceased 
to  be  enforced.  The  rules  still  continued  to  be  applied 
in  the  New  York  custom-house,  were  later  extended  to 
the  post-office,  and  were  so  successful  that  in  1883  the 
present  civil-service  law  was  passed.  A  law  similar 
to  it  was  passed  in  New  York  and  Massachusetts,  and 
the  plan  has  been  adopted  in  the  city  of  Philadelphia 
by  a  Pennsylvania  law  of  1885. 

Before  entering  upon  the  consideration  of  the  pro- 
visions of  these  laws  and  the  rules  as  to  capacity  issued 
by  the  executive  in  execution  of  them  it  must  be  noted 
that  they  are  not  mandatory  upon  either  the  President 
or  the  governor.  They  simply  authorize  him  to  ap- 
point commissions  to  aid  him  in  the  work  and  to  issue 
rules  as  to  the  details  of  the  competitive  or  other 
examinations  which  are  intended  by  the  laws  to  be 
established.  But  as  soon  as  such  rules  are  once  pro- 
mulgated they  become  binding  upon  the  heads  of 
departments  having  the  appointing  power  as  a  result 
of  legislative  enactment.^  For  since  the  power  of 
appointment  is  in  these  cases  based  upon  legislation  its 
extent  can  be  changed  by  legislation.  On  this  account 
it  cannot  be  said  that  the  civil-service  laws  are  uncon- 
stitutional so  far  as  the  relations  of  the  chief  executive 
and  the  ordinary  heads  of  departments  are  concerned.^ 

^  Cf.  United  States  v.  Perkins,  ii6  U.  S.,  483  ;  see  also  Peck  v.  Rochester, 
3  N.  Y.  Sup.,  872,  where  the  city  was  enjoined  from  paying  a  salary  to  a  city 
official  on  the  ground  that  his  appointment  had  been  made  in  violation  of  the 
law  ;   see  also  Rogers  v.  Buffalo,  2  Ibid.,  326. 

'  See  Dorman  B.  Eaton's  brief  in  the  Hinckley  case,  New  York  Times,  Sept. 
28,  1885. 


36  THE  LA  W  OF  OFFICERS. 

Where,  however,  the  head  of  a  department  has  the 
appointing  power  as  a  result  of  constitutional  pro- 
vision, it  has  been  held  in  several  decisions  that  the 
chief  executive  may  not,  even  if  authorized  by  statute, 
prescribe  rules  for  appointment  to  the  service  which 
limit  the  power  of  appointment  of  such  head  of 
department  by  requiring  that  he  shall  select  his  sub- 
ordinates as  a  result  of  a  competitive  examination/  The 
effect  of  these  decisions  has  been  to  take  away  a  large 
part  of  its  force  from  the  civil-service-reform  move- 
ment in  New  York.  For  the  superintendent  of  public 
works  and  the  superintendent  of  prisons  have  the 
appointing  power  by  grant  of  the  constitution  and  ap- 
point by  far  the  greatest  number  of  the  administrative 
subordinate  officers  of  the  central  government  of  the 
commonwealth  of  New  York.  ^ 

The  law  and  rules  of  the  United  States  national 
government  do  not  attempt  to  prescribe  intellectual 
qualifications  for  all  positions  in  the  national  service, 
but  start  out  by  exempting  certain  positions  from  the 
operation  of  the  rules.  Thus  section  7  of  the  law  pro- 
vides that  none  of  the  Senate  appointments  shall  be 
classified  for  examination  except  with  the  consent  of 
the  Senate  which  up  to  the  present  time  has  neither 
been  asked  for  nor  given,  and  that  persons  in  the  secret 
service  of  the  government  and  laborers  shall  not  be 
obliged  to  pass  an  examination  in  order  to  be  appointed 
to  positions  in  the  service.     The  rest  of  the  national 

*  People  <f^.  rel.  Killeen  v.  Angle,  109  N.  Y.,  564;  People  v.  Durston,  6th 
Report  of  the  N.  Y.  Civ.-Serv.  Com.,  231. 

'  The  United  States  law  is  to  be  found  in  27  Stats,  at  Large,  403,  c.  27  ;  the 
New  York  law  is  L.  1883,  c.  354  ;  the  Massachusetts  law  is  L.  1884,  c.  320 ; 
and  the  rules  and  regulations  of  the  commissions  may  be  found  in  any  of  the 
reports  of  the  commissions. 


QUALIFICATIONS  FOR  OFFICE.  37 

service  is  at  the  disposition  of  the  President,  who  may 
require  such  intellectual  or  other  tests  for  entrance 
into  the  service  as  he  deems  best.  Up  to  the  present 
time,  however,  the  President  has  thought  best  to  clas- 
sify for  examination  only  five  branches  of  the  service. 
These  are,  first,  the  "  classified  departmental  service." 
The  name  is  derived  from  the  fact  that  the  old  classifi- 
cation of  1853,  to  which  allusion  has  been  made,  has 
been  extended  practically  to  all  subordinate  positions 
at  Washington  in  the  eight  executive  departments, 
the  civil-service  commission,  the  department  of  labor, 
and  the  fish  commission.  In  the  department  of 
agriculture  are  included  also  the  employees  of  the 
weather  bureau  employed  elsewhere  than  at 
Washington.*  The  second  class  is  the  "classified 
customs  service,"  which  embraces  those  persons  simi- 
larly classified  and  serving  under  any  collector,  naval 
ofificer,  surveyor,  or  appraiser  in  any  customs  district 
where  the  officials  are  fifty  or  more  in  number.  In  this 
class  are  included  all  appointments  to  which  is  atta6hed 
a  salary  of  $900  or  over.^  The  third  class  is  the  "  classi- 
fied postal  service,"  which  is  composed  of  those  officers 
and  employees  in  the  postal  service  who  are  appointed 
under  any  postmaster  of  a  free-delivery  post-office.^ 
The  fourth  class  is  the  "classified  railway  mail  ser- 
vice," which  includes  all  officers  and  employees  in  the 
railway  mail  service.*  The  fifth  class  is  the  "  classified 
Indian  service,"  which  embraces  all  physicians,  school 
superintendents,  and  assistant  superintendents,  school 

*  Department  Rules  I.-IV.  ;  9th  Report  of  the  United  States  Civil-Service 
Commission,  64.  For  an  interesting  article  on  the  general  subject  see  F.  P. 
Powers  on  "The  Reform  of  the  Federal  Service"  in  Pol.  Set.  Qu,,  yo\.  III., 
260. 

'  Customs  Rule  I.         '  Postal  Rule  I,  sec.  2.        *  Railway  Mail  Rule  I. 


38  .  THE  LAW  OF  OFFICERS. 

teachers  and  matrons  in  the  Indian  service.^  It  is  to 
be  noted  that  in  all  these  classes  the  rules  exempt  from 
the  passage  of  examinations  for  appointment  to  the 
service  one  private  secretary  for  each  head  of  an  office 
or  bureau  where  such  head  is  appointed  by  the  President 
and  confirmed  by  the  Senate,  custodians  of  money  for 
whom  another  is  responsible  with  certain  exceptions — 
i,  e,  those  below  the  grade  of  assistant  cashier  or  assist- 
ant teller, — disbursing  officers  who  give  bonds,  deputies 
and  assistants  not  assigned  to  ordinary  administrative 
work,  chief  clerks  and  clerks  of  divisions,  superintend- 
ents and  assistant  superintendents,  except  in  the  Indian 
service,  and  persons  employed  exclusively  in  the  secret 
service.^  Care  is  taken  in  the  rules,  it  will  be  noticed, 
to  prevent  an  unduly  wide  interpretation  being  put  by 
appointing  officers  on  the  scope  of  these  exemptions. 
The  result  of  the  exemption  of  the  chiefs  of  divisions 
has  been  unfortunate.  It  is  said  that  the  position  of 
the  chief  of  division  has  become  rather  a  precarious 
one  and  is  filled  now  with  less  efficient  persons  than 
formerly,  and  filled  in  most  cases  for  partisan  political 
reasons.  The  demand  for  places  has  been  so  great  and 
the  number  of  places  to  be  distributed  so  small,  as  a 
result  of  the  enforcement  of  the  civil-service  law  and 
rules,  that  the  positions  of  chiefs  of  divisions  have 
been  used  to  reward  political  services.^  The  main 
reason  why  these  exemptions  have  been  made  is  to  be 
found  in  the  desire  to  secure  perfect  harmony  and 
confidence    between    the  officers  exempted  and  their 

^  Indian  Rule  I.  ;  see  7th  Report  of  the  U.  S.  Civil-Serv,  Com.,  79-89  ;  9th 
Ibid.^  64-70. 

*See  Departmental  Rule  II,,  sec.  3  ;  Customs  Rule  II.,  sec.  5  ;  Postal  Rule 
II.,  sec.  5  ;  Railway  Mail  Rule  II.,  sec.  5. 

^  See  F.  P.  Powers  on  the  "  Reform  of  the  Federal  Service  "  in  the  Pol.  Sci. 
Qu.,  III.,  278. 


QUALIFICATIONS  FOR  OFFICE.  39 

superiors.  It  is  believed  that  this  harmony  will  result 
from  a  uniformity  in  political  opinions  as  well  as  from 
purely  personal  reasons.  The  total  number  of  those  in 
the  ^*  classified  services  "  is  said  to  be  about  43,000.* 

Both  New  York  and  Massachusetts  have  followed 
the  example  set  by  the  national  government  and  have 
classified  their  services,  both  the  central  service  and 
the  service  of  the  cities,  for  the  purpose  of  providing 
tests  for  the  ascertainment  of  the  intellectual  capacity 
of  the  candidates  for  office.  They  have  further  fol- 
lowed in  the  main  the  same  principles  in  exempting 
the  Senate  appointments  and  laborers,  with  the  one 
exception  that  Massachusetts  has  provided  a  means  of 
forming  a  register  of  persons  desiring  positions  as 
laborers,  from  which  the  appointing  officers  are  to 
select  laborers  when  wanted.  It  is  reported  very  re- 
cently that  such  a  registration  of  laborers  has  been 
adopted  by  the  United  States  navy  department  for  the 
navy  yards.  The  classification  in  both  commonwealths 
had  on  account  of  the  greater  heterogeneity  of  the 
services  to  be  made  on  quite  a  different  plan.^ 

For  the  purpose  of  attending  to  the  examinations 
which  the  law  intended  to  establish  and  generally  of 
enforcing  the  provisions  of  the  civil-service  acts  there 
has  been  established  both  in  the  national  and  the  com- 
monwealth service  a  commission  of  a  non-partisan 
character  to  be  appointed  by  the  chief  executive  with 
the  consent  of  the  Senate  or  council  and  generally  re- 
movable by  him  alone.^  Under  this  commission  is  a 
chief  examiner  whose  duty  is,  under  the  direction  of 

•  9th  Rep.  of  the  Civ.-Serv.  Com.,  97. 

^  For  the  details  see  the  various  reports  of  the  commissions. 

'  U.  S.  Stats,  at  Large,  vol.  22,  c.  27,  p.  403  ;  N.  Y.  L.  1883,  c.  354 ; 
Mass.  L.  1884,  c.  320.  The  Massachusetts  law  requires  the  assent  of  the 
council  for  the  removal  as  well  as  for  the  appointment. 


40  TBE  LA  W  OF  OFFICERS. 

the  commission,  to  secure  uniformity  and  justice  in  the 
action  of  the  various  examining  boards.  These  exam- 
ining boards  are  to  be  designated  from  among  officers 
in  the  public  service,  after  consultation  with  the  heads 
of  departments,  by  the  civil-service  commission.  They 
may  hold  their  examinations  afc  the  capital  or  else- 
where. Any  fraud  on  their  part  or  on  the  part  of  any 
person  in  the  public  service  in  conducting  the  examina- 
tions is  to  be  punished.  The  composition  and  the 
duties  of  these  boards  are  defined  in  the  regulations  of 
the  commissions;  and  the  commission  will  consider 
complaints  as  to  the  unfairness  of  any  board  and  will 
revise  the  marking  or  grading  and  will  order  a  new 
examination  if  it  thinks  best.^ 

In  the  cities  in  New  York  there  are  special  commis- 
sions whose  composition  varies  considerably  as  they 
are  formed  in  accordance  with  the  rules  which  the 
mayors  of  the  cities  have  the  right,  subject  to  the  ap- 
proval of  the  commonwealth  commission,  to  issue.'^ 
This  power  of  approving  the  municipal  rules  is  about 
the  only  power  of  control  which  the  central  commis- 
sion has  over  the  municipal  service.  The  Massa- 
chusetts law  differs  from  the  New  York  law  in  that  it 
puts  the  control  of  the  municipal  as  well  as  that  of  the 
commonwealth  service  into  the  hands  of  the  common- 
wealth commission.^ 

The  examinations,  to  conduct  which  is  the  chief  pur- 
pose of  the  formation  of  these  commissions,  are  either 
pass  or  competitive  examinations.  The  former,  ^.  e.  the 
pass  examinations,  are  sometimes  called  standard  or 
non-competitive  examinations.     They  were  introduced 

'  U.  S.  Reg.  VI.  ;  N.  Y.  Reg.  15  ;  Mass.  Reg.  13. 
'  N.  Y.  L.  1884,  c.  410,  sec.  2.  '  Mass.  L.  1884,  c.  320,  sec.  2. 


QUALIFICATIONS  FOR  OFFICE.  41 

into  the  national  administrative  service  in  1853  but 
have  now  for  the  most  part  been  replaced  by  the  com- 
petitive examinations.  Pass  examinations  occur  for 
positions  under  the  civil-service  rules  only  in  excep- 
tional cases.  Such  cases  are  where  there  has  been  a 
failure  of  competent  persons  to  attend  and  be  examined 
and  where  the  subjects  in  which  the  examinations  are 
to  be  held  are  of  a  technical  character  or  require  pecul- 
iar information  and  skill.^  We  find  such  pass  exami- 
nations in  the  patent  office,  the  state  department,  the 
pension  office,  the  signal  office,  and  the  geological  sur- 
vey.^ In  addition  to  the  places  which  fall  under  the 
operation  of  the  general  civil-service  rules  we  find  pass 
examinations  held  also  in  other  branches  of  the  service, 
where  they  have  been  provided  by  executive  or  depart- 
mental regulations,  e,  g,  in  the  revenue  marine  service 
and  in  the  United  States  hospital  service.^ 

In  the  New  York  service  these  pass  examinations 
occur  more  frequently  than  in  the  United  States 
national  or  even  in  the  Massachusetts  service.  The 
reason  of  the  greater  frequency  was  that  in  the  opinions 
of  the  heads  of  the  departments  the  competitive  exam- 
inations were  unsuited  for  many  of  the  positions,  viz.^ 
expert  positions*  and  the  lower  grades  of  employ ees.s 
Thus  in  the  case  of  expert  positions  the  appointing 
officer  is  allowed  a  wide  discretion.  He  may,  first, 
select  from  three  persons  marked  highest  as  the 
result  of  a  competitive  examination ;  or  second,  he  may 
name  to   the   commission   three  or  more  persons  for 

^  See  U.  S.  Gen.  Rule  III.  which  makes  some  other  less  important 
exceptions  to  the  rule  of  competitive  examinations,  in  order  to  facilitate 
the  transaction  of  business  in  the  departments. 

2  See  7th  Rep.  U.  S.  Civ.-Serv.  Com.,  87.  ^  N.  Y.  Schedule  C. 

'  See  Comstock,  op.  cit.,  578  and  583.  *  N.  Y.  Schedule  D. 


42  THE  LA  W  OF  OFFICERS. 

competitive  examination ;  and  appoint  the  one  graded 
highest  in  such  examination ;  or  third,  he  may  appoint 
any  person  who  upon  a  pass  examination  shall  be  duly 
certified  to  him  by  the  commission  as  qualified  for  the 
duties  of  the  position.  This  third  method,  i.  e,  the 
pass  examination  pure  and  simple,  is  always  used  for 
the  lower  grades  of  employees/ 

The  competitive  examinations  may  be  either  open  or 
limited.  In  the  national  service  the  competitive  exami- 
nations are  in  nearly  all  cases  open  examinations,  ^.  e. 
open  to  all  comers  otherwise  duly  qualified,  and  in 
general  are  written  examinations.  In  the  national  ser» 
vice  further  these  open  competitive  examinations  are 
either  limited  or  general  in  scope  and  are  called  copyist 
examinations  or  clerk  examinations,  the  former  admit- 
ting the  applicants  only  to  the  lower  grades  of  the 
service.^  The  subjects  upon  which  the  copyist  exami- 
nations are  held  are  orthography,  penmanship,  arith- 
metic. The  clerk  examinations  are  on  th^  additional 
subjects  of  book-keeping,  accounts,  elements  of  the 
English  language,  letter  writing,  elements  of  the 
geography,  history,  and  government  of  the  United 
States.  In  addition  to  the  copyist  and  clerk  examina- 
tions there  are  what  are  called  supplementary  exami- 
nations which  are  held  for  places  requiring  certain 
technical,  professional,  or  scientific  knowledge  or  ac- 
quaintance with  some  other  language  than  English.* 
The  character  of  the  open  competitive  examinations  in 
the  commonwealth  service  is  similar  to  that  of  the 
national  open  competitive  examinations. ♦    In  New  York 

'  N.  Y.  Schedule  D.     See  N.  Y.  Rules  25-28. 

'  United  States  Departmental  Rule  II. 

•  See  7th  Rep.  of  the  U.  S.  Civ.-Serv.  Com.,  39,  231. 

-*  See  6th  Rep.  of  the  N.  Y.  Civ.-Serv.  Com.,  464. 


QUALIFICATIONS  FOR  OFFICE.  43 

in  addition  to  the  open  competitive  examinations  there 
are  also  limited  competitive  examinations,  i.  e.  limited 
to  those  persons  who  may  be  designated  by  the  head 
of  a  department  wishing  to  make  the  appointment/ 
But  for  most  of  the  clerical  service  under  the  rules  ^ 
the  examinations  are  open  competitive  examinations. 

Both  the  national  and  commonwealth  civil-service 
laws  provide  that  the  examinations  shall  be  practical 
in  character  and,  as  far  as  may  be,  shall  relate  to 
matters  which  will  fairly  test  the  relative  fitness  and 
capacity  of  the  persons  examined  to  discharge  the 
duties  of  that  branch  of  the  service  into  which  they 
wish  to  enter.  On  account  of  this  provision  it  will  be 
seen  that  in  many  cases  the  applicant  will  have  to 
state  in  advance  the  branch  of  the  service  into  which 
he  wishes  to  enter,  and  that  an  examination  which,  if 
passed  satisfactorily,  will  open  entrance  into  one  branch 
of  the  service,  will  not  open  to  him  entrance  into 
another.  This  is  essentially  true  of  the  New  York  ser- 
vice which  is  of  an  extremely  heterogeneous  character.^ 

All  applicants  who  pass  satisfactorily  the  open  com- 
petitive examinations  (seventy  per  cent,  in  both  the 
national  and  New  York  service,  sixty-five,  in  the  Massa- 
chusetts service,  in  all  cases  an  exception  being  made 
for  honorably  discharged  sailors  and  soldiers  of  the 
United  States'*)  are  placed  on  an  eligible  list  on  which 
they  may  remain  a  year,  and  when  a  proper  vacancy 
occurs,  the  commission  certifies  to  the  appointing  officer 
a  given  number,  viz,,  three,  standing  highest  on  the 

*  See  supra,  II.,  p.  41.  '  N.  Y.  Schedule  B. 

*  See  6th  Rep.  of  the  N.  Y.  Civ.-Serv.  Com.,  464  ei  seg. 

*  U.  S.  Dep.  Rule  VI.,  2  and  3  ;  Customs  Rule  III.,  3  and  4  ;  Postal  Rule 
III.,  3  and  4  ;  Railway  Mail  Rule  III.,  3  and  4  ;  Indian  Rule  III.,  5  ;  N.  Y. 
Rule,  1 5  ;  Mass.  Rule  xxviii. 


44  THE  LAW  OF  OFFICERS. 

list,  and  from  these  the  appointing  officer  makes  his 
choice.  In  both  the  national  and  the  commonwealth 
service,  honorably  discharged  sailors  and  soldiers  of  the 
United  States  are  to  be  preferred,  in  some  cases  even 
to  those  standing  higher  than  they,  if  they  have  been 
able  to  obtain  the  required  minimum  ma'rk.  The  ap- 
pointing officer  has  not  been  confined  in  his  choice  to 
the  candidate  standing  highest  on  the  list,  because  it 
was  feared  that  this  might  be  regarded  as  an  unconsti- 
tutional limitation  of  his  discretion.  The  United 
States  attorney-general  has  held  that  it  is  not  uncon- 
stitutional to  confine  the  choice  of  the  appointing 
to  the  four  standing  highest  on  the  list  of  eligibility.^ 
No  person,  it  may  be  added,  may  in  most  cases  be 
certified  more  than  three  times  to  the  same  appointing 
officer,  except  at  the  request  of  the  appointing  officer. 
This  provision  was  adopted  to  prevent  the  commissions 
from  forcing  upon  an  appointing  officer  any  person  who 
was  personally  objectionable  to  him.  The  appoint- 
ment is  not  yet,  however,  a  complete  one.  All  that 
the  applicant  has  shown  is  a  certain  amount  of  theo- 
retical knowledge.  He  is  now  put  upon  his  probation, 
as  it  is  called,  and  only  at  the  end  of  the  term  of  pro- 
bation, and  then  only  if  he  has  shown  practical  apti- 
tude for  the  place,  is  he  given  a  permanent  appointment. 
The  term  of  probation  is  six  months  in  the  United 
States  and  Massachusetts,  and  three  months  in  New 
York. 

What  has  been  outlined  is  the  strict  system  which 
the  laws  and  the  rules  as  a  whole  aim  to  enforce.  But 
it  is  to  be  noticed  that  the  rules  contain  detailed  pro- 
visions which  allow  the  appointing  officers  in  certain 

*  opinions  Attorneys-General,  XIII.,  516. 


QUALIFICATIONS  FOR  OFFICE.  45 

cases  a  greater  discretion  than  would  appear  from  this 
general  outline.  These  provisions,  while  permitting 
dispensing  with  the  rules  in  certain  cases,  are,  how- 
ever, intended  to  be  framed  so  as  to  prevent  such  a 
use  of  the  discretion  given  as  to  destroy  the  effect  of 
the  open  competitive  examination  system.  A  further 
qualification  provided  for  by  section  9  of  the  United 
States  civil-service  law  is  that  where  two  or  more 
members  of  the  same  family  are  in  the  public  service 
in  the  grades  covered  by  the  act,  no  other  member  of 
the  same  family  shall  be  eligible  for  appointment  to 
any  of  the  said  grades. 

It  will  be  noticed  that  in  almost  all  cases  where  the 
American  law  has  attempted  to  secure  mental  capacity 
in  the  positions  which  are  to  be  filled  by  appointment, 
it  has  done  so  by  means  of  a  competitive  examination 
and  a  term  of  probation.  Only  in  a  few  cases,  as  in 
position  of  medical  reviewer  in  the  pension  office,* 
where  professional  knowledge  is  necessary,  is  a  regular 
training  and  course  of  study  required.  The  result  is 
necessarily  that  those  persons  run  the  best  chance  for 
preliminary  appointment  to  most  of  the  positions  for 
which  qualifications  of  capacity  are  required,  who  can 
"  cram  "  the  best.  The  disadvantage  of  such  a  method, 
it  is  attempted  to  overcome  by  providing  that  the 
examinations  shall  be  of  a  practical  character,  and 
shall  relate  to  the  work  of  the  office  to  which  the  ap- 
pointment is  sought;  that  entrance  to  the  lower 
positions  alone  shall  be  obtained  in  this  way,  and 
finally  that  after  the  passing  of  the  examination  and 
the  preliminary  appointment,  the  applicant  for  appoint- 
ment, or  "  probationer  *'  as  he  is  called,  shall  not  be 

*  Comstock,  op.  cii.,  587. 


46  THE  LA  W  OF  OFFICERS. 

considered  as  having  a  permanent  appointment  until 
he  shall  have  proved  by  actual  practice  that  he  is  fitted 
to  discharge  the  duties  of  the  position  he  desires  to 
fill.  The  term  of  probation  is,  however,  comparatively 
short,  particularly  in  the  New  York  service.  With  a 
term  of  probation  so  short  the  examinations  are  the 
most  important  test;  and  these  evince  theoretical 
rather  than  practical  aptitude.  It  is  on  this  account 
probably  that  those  who  have  been  advocating  the 
civil-service-reform  movement,  as  this  method  of  filling 
the  positions  in  the  administrative  service  is  popularly 
designated,  have  not  attempted  to  extend  the  system 
beyond  the  lowest  grades  of  positions.  It  is  well 
that  they  have  taken  this  position,  for  it  is  very  doubt- 
ful if  an  examination  is  a  proper  method  of  showing 
capacity  for  places  whose  duties  are  at  all  discretionary 
in  character. 

///. — Qualifications  for  office  in  France, 

1.  General  qualifications. — The  qualifications  neces- 
sary for  appointment  to  office  in  France  are  fixed  for 
the  most  part  by  executive  decrees  and  departmental 
regulations  but  not  often  by  law  except  in  the  case  of 
some  of  the  general  qualifications.  These  general 
qualifications  are  sifci^gnship,  which  is  usually  required 
for  all  appointive  offices ;  a  certain  age  which  is  so 
fixed  as  to  ensure  the  entrance  of  candidates  into  the 
service  at  an  early  age  and  gradual  rise  by  promotion 
to  the  higher  grades  of  the  service ;  and  goo^L,ch^Eac- 
ter.  This  qualification  is  somewhat  the  same  as  that 
provided  by  the  United  States  civil-service  rules  but 
a  little  more  stringent.^ 

*  See  Penal  Code,  arts.  34,  35  ;  Block,  Diciiannaire,  etc.y  974. 


QUALIFICATIONS  FOR  OFFICE,  47 

2.  Qualifications  of  capacity. — In  the  purely  tech- 
nical and  professional  branches  of  the  service  the 
qualifications  consist  in  passing  successfully  thi'ough 
the  schools  established  by  the  government  for  the  pur- 
pose of  educating  men  for  these  branches  of  the  ser- 
vice. Thus  engineers  must  be  educated  at  the  school 
of  bridges  and  roads,  mining  engineers  at  the  school 
of  mines,  etc.^  etc}  In  most  of  the  ordinary  adminis- 
trative services,  however,  great  reliance  is  placed  upon 
the  passage  of  open  competitive  examinations.  But 
much  greater  reliance  is  placed  than  in  the  United 
States  on  the  possession  by  the  candidate  for  office  of 
a  good  general  education  which  is  evidenced  by  cer- 
tain diplomas  or  certificates.  The  diplomas  most  com- 
monly required  are  those  of  bachelor  of  letters  and 
science,  while  for  those  positions  which  require  a 
knowledge  of  the  law  the  diploma  of  licentiate  in  law 
(about  equal  to  the  usual  degree  of  bachelor  of  laws 
in  the  United  States)  is  necessary  and  in  some  cases 
the  highest  degree  in  law,  viz,^  that  of  doctor,  is  re- 
quired. It  is  to  be  remembered  that  the  degrees  of 
licentiate  and  doctor  of  laws  are  given  only  to  those 
persons  who  have  had  a  good  secondary  education. 
The  degree  of  bachelor  of  letters  is  required  for  posi- 
tions in  the  central  administration  of  the  treasury,  in 
the  department  of  foreign  affairs  and  the  diplomatic 
and  consular  service,  and  in  the  departments  of  war  and 
agriculture.  The  degree  of  licentiate  in  law  is  neces- 
sary to  obtain  the  position  of  chief  of  bureau  in  the 
department  of  justice  and  in  the  general  inspection  of 
the  finances  and  for  certain  positions  in  the  diplomatic 
and  consular  services.     Where  such  diplomas  are  re- 

»  Block,  loc.  cit. 


48  THE  LA  W  OF  OFFICERS. 

quired  they  must  be  submitted  for  examination  at  tlie 
time  of  application  for  entrance  into  the  service  when 
the  competitive  examinations  supervene.  All  the  ex- 
aminations are  conducted  by  officers  in  the  depart- 
ments into  which  entrance  is  sought  and  are  under  the 
supervision  of  the  heads  of  the  departments.  There  is 
no  civil-service  or  examining  commission.  Similar  ex- 
aminations are  held  for  entrance  into  the  services  of 
the  localities.*  Finally  the  French  place  much  greater 
reliance  than  does  the  system  in  the  United  States 
upon  the  term  of  probation.  The  length  of  the  term 
is  much  greater  usually  than  in  the  United  States, 
often  being  as  long  as  two  years,  and  its  length  often 
depends  on  the  number  of  vacancies  and  the  merit  of 
the  probationer.  The  candidate  in  many  cases  is  not 
given  any  salary  during  the  term  and  often  has  to  prove 
to  the  satisfaction  of  the  administration  he  has  sufficient 
means  to  support  himself  during  his  novitiate.^ 

What  has  been  said  refers  alone  to  the  subordinate 
positions  of  the  service.  The  higher  positions  which, 
as  in  the  United  States  are  regarded  as  in  the  main 
political,  are  not  subject  to  any  qualifications  of  capa- 
city.^ The  appointing  power  has  absolute  discretion 
in  the  filling  of  these  positions. 

IV. — Qualifications  for  office  in  Germany. 

1.  General  qualijkations. — Among  the  general  qual- 
ifications for  offices  filled  by  appointment  in  Germany 
are  citizenship,  which,  however;  is  in  many  cases  ob- 
tained by  the  appointment  * ;  good  character,  generally 

^  For  the  details  as  to  the  French  system  see  Meterie-Larrey,  Les  Emplois 
Publics,  8  et  seq.,  15  and  83. 

*  Meterie'-Larrey,  op.  cit.  passim.  ^  Block,  Dictionnaire,  975,  sec.  23. 

*  De  Grais,  Verfassung  und  Verwaliung,  etc.,  1883,  69. 


QUALIFICATIONS  FOR  OFFICE,  49 

more  stringent  than  in  the  United  States  ^ ;  age,  which 
varies  for  the  different  branches ;  and  fulfilment  of 
military  service  or  proof  that  the  candidate  is  physi- 
cally unfit  for  military  service. 

2.  Qualifications  of  ca/pacity, — The  qualifications  of 
capacity  differ  in  accordance  with  the  two  great  divi- 
sions of  the  service,  known  as  the  higher  and  the  sub- 
altern service.^  The  higher  service  in  Prussia,  upon 
whose  system  the  imperial  system  is  based  so  that  the 
Prussian  system  may  be  taken  as  a  type,  embraces  ^yq 
classes  of  officers,  beginning  with  the  under  secretaries 
of  state  and  ending  with  the  position  of  inspector.^ 
For  the  purpose  of  determining  the  qualifications 
necessary  for  appointment  to  the  service  the  higher 
service  may  be  divided  into  the  general  higher  service 
and  the  special  or  technical  higher  service,  the  last  of 
which  is  composed  of  officers  such  as  mining  engineers, 
etc,,  etc.  The  general  higher  service  includes  such 
positions  as  that  of  under  secretary  of  state,  heads  of 
bureaus,  provincial  governors,  "government  presidents" 
and  councillors,  and  the  professional  members  of  the 
important  administrative  authorities  and  courts.*  The 
purpose  of  the  required  qualifications  for  entrance  into 
the  higher  service  is  to  bring  into  the  service  at  an 
early  age  men  who  possess  wide  general  culture  and 
special  knowledge  of  legal  and  political  science.  In 
detail  the  provisions  are  as  follows  :  In  the  first  place 
a  good  secondary  education  must  have  been  had,  then 

*  Loening,  Deutsche s  Verwaltungsrechi,  120 ;  Von  R5nne,  SUmtsrecht  der 
Preussischen  Monarchies  4th  Ed.,  III.,  146,  note  4,  referring  to  certain  instruc- 
tions issued  to  appointing  officers  in  Prussia  in  18 17,  and  providing  that  no  persons 
of  known  bad  character  shall  be  appointed  to  positions  in  the  service. 

'  Von  Ronne,  op.  cit.,  sec.  256. 

3  De  Grais,  op.  cit.,  74.  *See  supra,  I.,  pp.  304,  307. 

VOL.  II— 4 


50  THE  LAW  OF  OFFICERS. 

a  course  of  three  years'  study  of  law  at  some  university, 
half  of  which  must  have  been  at  a  Grerman  university. 
Proof  of  such  study  must  be  submitted  to  one  of  the 
higher  courts  which  proceeds  through  a  commission  to 
examine  the  candidate.  The  examination  is  both  oral 
and  in  writing,  and  is  upon  the  private  and  the  public 
law,  legal  history,  and  the  principles  of  political 
science.  The  candidate  must  also  write  an  original 
dissertation  on  some  legal  subject,  the  general  character 
of  which  he  may  select.  He  is  allowed  six  weeks  in 
which  to  do  this  work  and  must  prove  to  the  satis- 
faction of  the  examiners  that  the  work  is  his  own. 
The  examination  is  held  after  the  dissertation  has  been 
accepted ;  and  if  the  candidate  is  unsuccessful  he  will 
be  given  another  opportunity  to  try  after  the  expira- 
tion of  six  months,  but  if  he  is  a  second  time  unsuccess- 
ful he  is  forever  shut  out  of  the  higher  service.  For 
the  successful  candidate  the  passage  of  the  examination 
marks  the  beginning  of  the  period  of  practical  training. 
For  he  is  at  once  assigned  to  work  with  some  one  of 
the  higher  courts.  If  a  candidate  for  the  judicial 
service,  he  works  here  for  four  years,  if  a  candidate  for 
the  higher  administrative  service,  he  works  for  two 
years  with  the  court  and  is  then  assigned  to  work  for 
another  two  years  with  some  administrative  authoiity. 
During  his  connection  with  these  authorities  the  law 
requires  the  presiding  officer  to  devote  his  personal 
attention  to  the  instruction  of  the  referendariuSy  as  the 
candidate  is  called,  expressly  forbids  such  presiding 
officers  from  making  use  of  the  referendarii  simply  to 
aid  him  in  his  labors,  and  requires  that  the  work  that 
is  assigned  to  them  shall  be  such  as  will  best  fit  them  for 
their  future  work.     The  presiding  officer  must  keep  a 


QUALIFICATIONS  FOR  OFFICE.  51 

record  of  the  conduct  of  the  referendarii  under  his 
charge.  At  the  end  of  this  long  period  of  probation 
the  candidate,  if  his  work  has  been  satisfactory,  is  to 
present  himself  for  the  final  examination  which  is 
known  as  the  great  state  examination  and  which  is 
conducted  by  the  "  Examining  Commission  for  Higher 
Administrative  Officers."  This  sits  at  Berlin  and  is 
under  the  direction  of  the  state  ministry.  The  examina- 
tion is  both  oral  and  in  writing  and  is  on  the  law  in 
force  in  Prussia,  especially  the  constitutional  and  ad- 
ministrative law,  and  on  political  economy  and  the 
science  of  finance ;  and  like  all  the  examinations  in  the 
Prussian  system  is  a  pass  examination.  The  referenda- 
riu8  who  passes  successfully  the  great  state  examination 
is  then  appointed  to  be  governmental  assessor,  is  as- 
signed to  some  salaried  position  in  the  higher  adminis- 
trative service,  and  is  eligible  to  the  highest  positions 
in  the  service.  The  only  great  differences  between  the 
qualifications  required  for  the  general  service  and  those 
required  for  the  special  services,  such  e.  g.  as  positions 
in  the  forest  or  mines  administration,  are  that  the 
examinations  for  these  latter  services  are  upon  rather 
more  technical  subjects,  that  university  study  is  not  so 
commonly  required,  and  that  the  period  of  practical 
training  required  is  a  longer  one.* 

The  subaltern  service  is  divided  into  the  subaltern 
service  proper  and  the  subordinate  service.  The  former 
embraces  those  positions,  such  as  the  higher  clerkships, 
whose  duties  require  the  exercise  of  a  certain  amount 
of  legal  knowledge  and  the  exercise  of  a  certain 
amount  of  discretion,  while  the  purely  subordinate 
service  includes  simply  the  purely  mechanical  positions, 

^  For  the  details  see  Von  RSnne,  op.  cit..  III.,  432-451. 


52  THE  LAW  OF  OFFICERS. 

such  as  copyists,  porters,  and  the  like.  Provision  is 
made  by  law  for  the  filling  of  most  of  the  positions  in 
the  subordinate  service  with  persons  who  are  provided 
with  military  certificates.  These  are  given  to  soldiers 
and  sailors  who  have  been  invalided,  or  have  served 
for  twelve  years  in  the  army  as  non-commissioned 
officers.  In  fact  the  purely  mechanical  positions  are 
reserved  exclusively  for  such  persons.  Further  one 
half  of  the  positions  in  the  subaltern  service  proper 
which  do  not  require  technical  or  scientific  training  are 
also  reserved  for  persons  with  the  military  certificates, 
who,  however,  have  to  pass  examinations  where  these 
are  necessary.  All  other  positions  in  the  subaltern 
service  are  filled  by  means  of  the  "  civil  supernumeriat." 
Entrance  into  the  service  as  civil  supernumerary  re- 
quires the  fulfilment  of  military  duty,  ability  to  sup- 
port oneself  without  pay  for  three  years,  a  certificate 
from  one  of  the  well  recognized  schools  for  secondary 
education  such  as  the  gymnasium  (Zeugniss  der  Reife 
fur  Prima),  and  an  age  of  between  eighteen  and 
thirty  years.  Referendcmi  may,  however,  enter  the 
subaltern  service.^  All  other  persons  desiring  to  enter 
the  subaltern  service  must  serve  a  term  of  probation 
termed  a  novitiate  and  pass  an  examination  of  a  prac- 
tical character  at  its  expiration.^ 

V, — Qualifications  for  office  in  England, 

As  a  result  partly  of  legal  provisions  but  more  of 
practice  the  English  administrative  service  is  divided 
into  two  great  divisions,  viz.^  the  political  service  and 
the  permanent  service. 

1.  The  political  service, — This  embraces  the  ministers 

'  Cf.  Von  Ronne,  op.  ciL,  III.,  451-4.  '  Ibid.,  452. 


Q  U A  LI  PICA  TIONS  FOR  OFFICE.  5  3 

and  the  parliamentary  under-secretaries  of  state  and  is 
composed  of  from  fifty  to  sixty  persons  who  go  out  of 
office  with  each  change  of  administration.  The  qualifi- 
cations for  this  branch  of  the  service  are  of  a  purely 
practical  character.  That  is  officers  must  not  be  too  old 
to  do  their  share  of  the  work  in  Parliament  and  must 
in  the  nature  of  things  have  a  good  education  and  a 
sufficient  knowledge  of  departmental  routine  to  rep- 
resent the  ministry  in  Parliament,  and  finally  must  be 
tolerably  sure  of  their  seats  in  Parliament,  of  which 
they  are  members.^ 

2.  The  permanent  service. — All  the  rest  of  the 
service  has  a  tenure  practically  during  good  behavior, 
but  the  manner  of  appointment  and  the  legal  or  prac- 
tical qualifications  for  the  positions  in  this  part  of  the 
service  vary  greatly  as  a  result  of  the  fact  that  it  is 
divided  into  many  divisions.  The  first  division  to  be 
noticed  is  that  class  of  officers  who  are  known  in  the 
English  political  system  as  "staff  appointments." 
These  consist  of  the  permanent  under-secretaries  of 
state,  commissioners,  law  clerks,  etc.,  etc.  They  are 
really  the  most  important  officers  for  the  routine  work 
of  the  departments  and  form  the  bond  of  union  between 
the  changing  ministries  and  the  permanent  lower  ser- 
vice. They  are  often  spoken  of  as  the  "  depositaries  of 
official  tradition,"  and  are  the  indispensable  advisers  of 
the  political  service.  While  appointed  generally  for 
political  reasons,  there  being  no  legal  qualification 
generally  for  the  positions,^  at  the  same  time  great  care 
is  taken  to  obtain  capable  men  and  their  terms  of 
office   are   practically   for   life.^      Under   the    present 

^Gneist,  Das EnglischeVerwaltungsrecht^etc .,  1884,  241.  ^  Todd,  op.  cit.,  I., 616. 
'  Cf.  Gneist,  op.  cit.,  2./\i.  ;  Anson,  op.  cit.,  II.,  199-201. 


54  THE  LA  W  OF  OFFICERS. 

scheme  of  classification  the  higher  permanent  service 
ends  with  these  staff  appointments  and  clerks  of  the 
higher  divisions  are  often  promoted  to  these  positions.^ 
The  second  division  of  the  permanent  service  is  to  be 
found  in  the  clerks  of  what  is  known  as  the  higher 
division.  It  is  to  be  noted,  however,  that  in  addition 
to  these  and  in  distinction  from  them  should  be 
mentioned  expert  and  professional  positions  such  as 
clerks  in  the  office  of  the  solicitor  of  customs  and  in 
the  office  of  criminal  law  accounts,  appointments  to 
such  positions  being  the  result  of  the  passage  of  open 
competitive  special  examinations.^  Positions  in  the 
higher  division  are  quite  responsible  and  the  exercise 
of  the  duties  of  the  office  often  requires  the  exercise  of 
considerable  discretion.  Persons  desiring  appointment 
in  this  division  first  pass  a  preliminary  test  examina- 
tion open  to  all  comers  between  eighteen  and  twenty- 
four  years  of  age  on  such  elementary  subjects  as  arith- 
metic, English  composition,  geography,  and  English 
history.^  After  passing  such  examination  satisfac- 
torily, they  are  eligible  for  the  competitive  examination 
which  is  intended  to  be  of  a  character  to  suit  young 
men  from  eighteen  to  twenty-three  years  of  age  trained 
at  a  good  school  or  at  one  of  the  universities.  The 
examination  is  on  a  small  number  of  obligatory  sub- 
jects selected  by  the  candidate  from  a  list  prepared  by 
the  civil-service  commissioners  in  consultation  with  the 
heads  of  departments.  The  subjects  include  history, 
literature,  natural  science,  mathematics,  mental  and 
moral  philosophy,  jurisprudence,  and  political  economy, 
and  bear  little  relation  to  the  duties  of  the  office  ap- 

'  Crawley,  Handbook  of  Competitive  Examinations y  6. 
'  See  Crawley,  op.  cii.,  57  ei.  seq.  and  8i.  ^  Ibid,^  45. 


QUALIFICATIONS  FOR  OFFICE.  55 

pointment  to  which  is  sought.  The  greatest  weight  is 
laid  upon  mathematics  and  natural  science  and  the  exam- 
ination is  intended  simply  to  show  proficiency  in  matters 
of  general  education.  The  successful  candidates  are 
placed  on  a  list  in  alphabetical  order  and  may  subse- 
quently pass  on  other  subjects  on  the  list,  which  fact  is 
then  to  be  noted  against  their  names.^  As  vacancies 
occur  the  heads  of  departments  are  to  select  whom 
they  wish  from  the  list.  Candidates  may  refuse  the 
place  offered  and  may  notwithstanding  remain  a  certain 
time  on  the  list.  After  appointment  in  this  way  the 
candidate  is  put  on  probation  for  a  year  and  if  satis- 
factory will  then  be  appointed  permanently.^  This 
method  of  filling  the  higher  clerkships  is  regarded  by 
many  as  unsatisfactory  as  laying  too  much  stress  on 
mere  theoretical  knowledge ;  and  indeed  the  examina- 
tions are  so  difficult  that  not  so  many  candidates  present 
themselves  as  were  expected.^ 

The  vast  body  of  mere  clerks  are  to  be  found  in 
what  is  known  as  the  lower  division.  Their  duties  are 
simply  to  carry  out  intelligently  the  orders  of  their 
superiors.  It  is  not  the  intention  to  permit  the  pro- 
motion of  any  such  persons  to  the  higher  di vision. -♦ 
The  qualifications  for  appointment  to  positions  in  this 
division  are  practically  the  same,  with  the  exception 
that  the  examinations  are  easier  and  that  the  appoint- 
ing officer  is  confined  in  his  choice  to  the  one  marked 
highest  on  the  list  of  eligibles.  The  head  of  a  depart- 
ment may  however  demand  some  special  qualifications 
as  e.  g,  the  ability  to  read  some  foreign  language.   The 

1  Ibid.,  46. 

'  Ibid.,  and  Order  in  Council,  Feb.  12,  1876,  sec.  10. 
'  See  Nineteenth  Century,  October,  1886. 
*  Order  in  Council,  Feb.  12,  1876,  sec.  18. 


56  THE  LA  W  OF  OFFICERS. 

term  of  probation  is  the  same,  viz.^  a  year,  and  if  the 
probationer  is  unsatisfactory  in  one  department  he  may 
be  given  another  trial  in  another  department  for  which 
it  is  believed  he  is  better  suited.  The  limits  of  age 
for  the  lower  division  are  from  seventeen  to  twenty 
except  in  the  case  of  boy  clerks.  These  are  admitted 
at  the  age  of  fifteen  to  seventeen  by  passing  a  competi- 
tive examination  of  a  very  limited  character.  After 
good  service  they  may  compete  among  themselves  for 
a  limited  number  of  the  clerkships  in  the  lower  divi- 
sions and  those  who  are  unsuccessful  in  obtaining 
appointment  are  to  be  dismissed  from  the  service  at 
the  age  of  nineteen.^  Finally  competitive  examinations 
are  also  held  for  the  position  of  copyist.^ 

Finally  it  is  to  be  noticed  that  the  expenses  of  con- 
ducting these  examinations  are  defrayed  from  fees  paid 
by  the  candidates,  which  vary  from  <£5  for  places  in 
the  higher  division  to  \s.  for  the  boy  clerkships ;  and 
that  the  examinations  are  conducted  as  in  the  United 
States  under  the  supervision  of  a  civil-service  commis- 
sion which  is  appointed  by  the  executive.  As  is 
usually  the  case  in  this  country  laborers  are  considered 
a  legitimate  element  of  party  patronage;  and  no 
qualifications,  not  even  registration,  are  required. 

VI . — Comparison  of  the  various  plans. 

If  we  compare  the  various  systems  which  have  been 
adopted  for  ensuring  intellectual  capacity  in  the  incum- 
bents of  positions  in  the  government  service  filled  by 
appointment  we  find  that  Germany  is  the  only  country 
which  has  provided  that  the  incumbents  of  the  most 
responsible  positions  shall  show  any  evidence  of  fitness 

'  See  Crawley,  op.  cit.,  48-51.  ^  Ibid.,  51. 


QUALIFICATIONS  FOR  OFFICE.  57 

except  such  as  is  to  be  shown  by  the  purely  practical  tests 
of  every-day  life.  In  Germany,  office-holding,  especially 
in  the  highest  positions,  is  regarded  as  a  learned  pro- 
fession on  a  par  with  the  other  well  recognized  learned 
professions  and  therefore  it  is  only  natural  for  the  Ger- 
mans to  require  of  the  candidates  for  the  highest  posi- 
tions an  education  and  training  of  the  same  general 
grade  as  that  which  is  required  of  the  lawyer  or  the 
physician.  In  England  on  the  other  hand,  while  no 
legal  requirements  are  laid  down,  the  practical  require- 
ments which  are  in  fact  demanded  amount  to  very 
much  the  same  thing,  with  the  single  exception  that  no 
weight  at  all  is  in  the  higher  positions  {e,  g.  the  staff 
appointments)  laid  upon  theoretical  training.  While 
it  is  probable  that  persons  who  have  passed  through 
the  universities  or  who  are  learned  in  the  law  will 
more  frequently  fill  these  positions  than  non-university 
men  still  these  places  are  open  to  those  who  have  had 
nothing  more  than  the  most  general  education.  But  in 
England  this  lack  of  theoretical  training  is  largely  com- 
pensated for  by  the  rule  that  once  appointed  to  any  of 
these  higher  positions  the  incumbent  will  remain  there 
probably  all  his  life,  and  also  by  the  fact  that  these 
positions  are  regarded  as  in  the  ordinary  course  of  pro- 
motion though  there  is  no  law  providing  that  this  shall 
be  the  case.  The  result  is  that  these  higher  positions 
are  filled  in  England  for  the  most  part  by  men  who  are 
thoroughly  conversant  with  the  duties  required  of  them 
and  that  a  change  of  ministry  has  no  perceptible  effect 
on  the  work  of  the  administrative  departments,  which 
goes  on  as  before  under  the  direction  of  the  officers 
occupying  the  staff  appointments.  In  France  also 
somewhat  the  same  method  of  filling  the  higher  offices 


58  THE  LA  W  OF  OFFICERS. 

has  been  adopted,  the  only  difference  being  that  per- 
haps considerably  more  emphasis  than  in  England  is  laid 
upon  theoretical  knowledge  and  practical  administrative 
experience,  in  that  the  positions  in  the  higher  service 
are  filled  perhaps  more  frequently  by  men  who  have 
had  a  legal  training  and  by  promotion  from  the  lower 
grades  of  the  service.  Here  again  it  has  not  been 
thought  best  to  limit  at  all  the  discretion  of  the 
appointing  power  in  the  filling  of  the  highest  posi- 
tions. In  the  filling  of  these  positions,  political  reasons, 
undoubtedly  have  large  influence.  It  must  also 
be  noted,  that  the  tenure  of  these  positions  is  not 
probably  so  fixed  as  it  is  in  England,  although  the 
retention  of  a  certain  proportion  of  each  incumbent's 
salary  in  order  to  form  a  pension  fund  for  the  payment 
of  official  pensions^  makes  it  more  difficult  than  it 
otherwise  would  be  to  make  wholesale  removals.  As 
in  England  and  in  France,  so  in  the  United  States, 
both  in  the  national  and  the  commonwealth  services, 
there  are  few  legal  requirements  of  capacity  for  the 
higher  positions.  Keliance  is  placed  almost  entirely 
upon  the  wisdom  of  the  appointing  officers  who,  it  is 
supposed,  will  be  guided  in  their  choice  by  the  prac- 
tical needs  of  the  service,  although  political  reasons 
are  at  the  same  time  expected  to  have  a  large  influence. 
One  fact  which  makes  the  requirement  of  a  knowl- 
edge of  the  law  almost  unnecessary  in  the  American 
system  is  the  wide  opportunity  given  in  the  United 
States  for  legal  instruction,  which  has  resulted  in  the 
fact  that  many  if  not  most  of  the  higher  positions  in 
the  government  are  filled  by  men  who  have  been 
educated  in  the  law.     It  has  been  remarked  of  the 

^  Infra,  II.,  p.  74! 


QUALIFICATIONS  FOR  OFFICE.  59 

American  system  of  government,  that  it  is  a  govern- 
ment of  lawyers.  But  different  from  the  other  systeme 
the  American  system  has  not  yet,  certainly  so  far  as 
the  higher  offices  are  concerned,  developed  a  permanent 
tenure.  The  class  of  what  are  deemed  political  offices 
reaches  down  much  lower  in  the  administrative  hier- 
archy than  in  other  countries.  People  almost  expect 
that  all  positions  which  require  the  exercise  of  any 
considerable  amount  of  discretion  shall  be  filled  with 
new  incumbents  by  every  incoming  administration. 
This  tendency  has  been  rather  aggravated  by  the  laws 
known  as  the  term-of-office  acts,^  which  fix  the  term  of 
most  of  the  important  offices  in  the  national  govern- 
ment at  four  years.  The  result  is  that  while  the 
American  official  has  generally  sufficient  knowledge  of 
the  law  to  enable  him  to  perform  his  duties  with  intel- 
ligence the  frequent  changes  that  are  made  in  the 
higher  positions  make  it  practically  impossible  to 
keep  in  office  many  persons  who  are  thoroughly 
acquainted  with  the  details  of  their  work.  This  is  the 
weak  point,  from  an  administrative  point  of  view,  of 
the  American  system,  and  reform  of  this  particular 
weakness  seems  quite  hopeless  so  long  as  people  have 
the  fear,  which  they  undoubtedly  do  have,  of  a  perma- 
nent force  of  officials,  which  is  associated  in  their  minds 
with  bureaucratic  government. 

The  differences  in  the  various  methods  of  filling  the 
lower  positions  of  the  service  are  not  so  marked  in  the 
different  countries.  They  all  agree  in  requiring  the 
proof  of  capacity  to  be  made  by  the  passage  of  exami- 
nations. But  while  in  England  and  the  United  States 
the  examination  and  a  short  term  of  probation  are  the 

'  Infra,  II.,  p.  90. 


6o  THE  LA  W  OF  OFFICERS. 

only  requirements  practically  for  most  of  the  positions, 
and  while  the  examinations  bear  no  very  close  relation 
to  the  duties  of  the  office  appointment  to  which  is 
sought,  in  France  and  Germany  great  reliance  is  placed 
upon  practical  work  in  the  departments  and  examina- 
tions are  much  more  closely  related  to  the  duties  of  the 
various  positions,  while  in  addition  to  the  examinations 
and  a  long  term  of  probation  proof  of  a  good  general 
education  is  very  generally  required,  i,  e,  the  candidates 
for  all  but  the  absolutely  mechanical  positions  must 
have  had  an  education  equal  to  that  obtained  in  the 
first  two  or  three  years  of  the  ordinary  American 
college.  Again  the  American  system  differs  from  the 
English  system  in  that  reliance  is  not  placed  upon 
these  examinations  on  subjects  of  a  general  educational 
character  to  fill  those  positions  whose  duties  are  at  all 
discretionary  in  character.  This,  it  would  seem,  is  wise, 
for  it  is  just  here  that  the  examination  system  does  not 
appear  to  work  with  unquestioned  satisfaction.  Such 
places  should  be  filled  by  promotion  from  the  lower 
grades.  This  the  English  system  attempts  to  prevent 
altogether  in  its  general  prohibition  of  the  promotion 
of  clerks  in  the  lower  division  to  positions  in  the 
higher  division.  While  unfortunately  the  rule  in  the 
United  States  does  not  seem  to  be  to  fill  the  positions 
of  discretion  by  promotion  from  the  lower  positions,  it 
is  very  probable  that  the  American  method,  even  with 
its  present  defects,  is  superior  to  the  English  method  of 
attempting  to  fill  such  positions  by  means  of  examina- 
tions on  such  subjects  as  the  higher  mathematics  and 
natural  science.  Finally  the  German  system  differs 
from  all  the  others  in  that  the  examinations  take  place 
after,  not  before,  the  term  of  probation,  in  that  they  are 


QUALIFICATIONS  FOR  OFFICE.  6i 

pass  and  not  competitive  examinations,  and  in  tliat  tlie 
subjects  on  which  they  are  held  seem  to  relate  very 
closely  if  not  entirely  to  the  duties  of  the  office  with 
which  the  candidate  is  supposed  to  have  acquainted 
himself  during  his  long  term  of  probation.  In  France 
also  it  is  to  be  noted  that  the  examinations  are  much 
more  practical  in  character  than  in  England  or  the 
United  States.  While  the  present  movement  for  the 
reform  of  the  civil  service  has  been  in  the  main  upon 
the  lines  of  the  preceding  English  reform,  it  is  very 
probable  that  we  have  followed  the  English  example 
about  as  far  as  we  can  follow  it  with  profit,  and  it  is 
doubtless  either  to  France  or  Germany  that  we  shall 
have  to  turn  in  our  endeavors  further  to  reform  the 
conditions  of  entrance  into  the  administrative  services. 
We  must  not  only  do  this,  but  also  public  opinion  must 
be  cultivated  up  to  the  point  at  which  it  is  in  England, 
where  it  will  not  permit  wholesale  changes  of  per- 
sonnel in  the  higher  branches  of  the  service  not  wholly 
political  in  character.  / 


CHAPTER  IV. 

THE   RIGHTS    OF    OFFICERS. 

/. — Right  to  the  office. 

The  first  right  to  be  noticed  is  the  right  of  the  officer 
to  exercise  the  powers  and  perform  the  duties  con- 
nected with  his  office.  A  continuing  right  to  the 
office  can  be  spoken  of  only  in  the  case  of  an  officer 
whose  tenure  of  office  is  independent  of  any  adminis- 
trative superior,  so  far  as  the  length  of  term  is  con- 
cerned. Only  those  officers  have  a  peimanent  right 
to  exercise  the  powers  and  perform  the  duties  of 
the  office  who  may  not  be  arbitrarily  discharged  by 
an  administrative  superior.^  But  the  question  of  the 
right  of  an  officer  to  his  office  is  one  which  may  come 
up  at  the  beginning  of  the  official  relation  rather  than 
at  the  end.  It  will  naturally  come  up  more  frequently 
in  the  case  of  elective  than  in  the  case  of  appointed 
officers,  but  it  may  come  up  in  the  case  of  an  appoin- 
tive office  especially  in  the  United  States,  where  the 
term  of  appointed  officers  is  so  often  fixed  by  law. 
For  instance  the  appointing  authority  may  make  an 
appointment  to  an  office  when  he  believes  that  the 

*  Thus  the  remedy  by  means  of  which  the  right  may  be  enforced,  inz.,  the  quo 
•warranto,  may  not  be  made  use  of  in  the  case  of  offices  of  no  certain  duration. 
State  V.  Champlin,  2  Bailey,  S.  C.  220;  Darley  v.  The  Queen,  12  Clark  & 
Finlay,  520,  541. 

62 


THE  RIGHTS  OF  OFFICERS.  63 

term  of  the  incumbent  has  expired,  while  the  incum- 
bent may  claim  that  the  term  has  not  expired  and  that 
he  has  a  right  to  the  office  until  the  expiration  of  its 
term.  In  the  case  of  an  elective  office  the  question  as 
to  the  right  may  come  up  very  frequently  as  the  result 
of  a  dispute  as  to  who  has  been  elected.  Everywhere 
this  right  of  the  officer  to  his  office  is  recognized,  es- 
pecially in  the  case  of  elective  offices ;  the  great  differ- 
ence in  the  different  countries  being  as  to  the  method 
by  which  the  right  is  to  be  enforced.  In  England 
and  the  United  States  the  rule  has  been  ever  since  the 
reign  of  Queen  Anne/  that  the  title  to  office  is  to  be 
tried  by  the  writ  of  quo  warranto^  or  the  information 
in  the  nature  of  a  quo  warranto,  or  its  statutory  sub 
stitute,  by  means  of  which  the  courts  are  to  decide 
who  are  the  rightful  holders  to  offices  in  question,  and 
as  such  entitled  to  exercise  their  powers  and  receive 
their  emoluments.  Further  one  who  is  clearly  entitled 
to  an  office  may  by  mandamus  force  the  delivery  to 
him  of  the  insignia  of  office  and  may  in  like  manner 
obtain  possession  of  public  buildings  and  records.'^  In 
the  United  States  the  appeal  to  the  courts  is  generally 
open  to  any  candidate  for  the  office,  to  the  government, 
and  in  many  cases  to  any  elector  of  responsibility.^  In 
some  of  the  American  commonwealths  special  tril)u- 
nals  to  try  election  cases  have  been  established.  If 
this  is  the  case,  recourse  must  be  had  to  such  tribunals 
and  not  in  general  to  the  quo  warranto,^     In  England 

*  See  9  Anne,  c.  20. 

«  People  V.  Kelduff,  15  111.,  492  ;  Walter  v.  Belding,  24  Vt.,  658  ;'  Hooten  v. 
McKinney,  5  Nev.,  194. 

*  See  Commonwealth  v.  Neeser,  44  Pa.  St. ,  341  ;  Commonwealth  v.  Swank, 
79  Pa.  St.,  144  ;  cf.  Mechem,  op.  cit.,  sec.  213. 

*  State  V,  Marlow,  15  Ohio  St.,  144  ;  People  v.  Goodwin,  22  Mich.,  496  ;  see 
also  People  v.  Hall,  80  N.  Y.,  117,  and^/.  Mechem,  op.  cit,^  sec.  214. 


64  THE  LAW  OF  OFFICERS. 

also  of  late  years  the  tendency  has  been  to  establish 
special  tribunals  to  try  election  cases,  which,  however, 
act  under  the  supervision  and  to  a  certain  extent  under 
the  direction  of  the  ordinary  courts  of  law/  Finally 
in  some  cases  in  England  election  contests  are  decided 
by  the  superior  authorities  of  the  administration  itself.^ 
On  the  continent  access  to  the  ordinary  courts  to  try 
the  title  to  office  is  seldom  allowed.  It  is  believed 
such  a  practice  would  violate  the  fundamental  princi- 
ple of  the  independence  of  the  administration.  Gen- 
erally any  dispute  as  to  the  title  to  an  office  is  to  be 
tried  by  the  administrative  courts,  and  the  right  to 
appeal  against  the  decision  of  an  election  bureau  is 
given  not  only  to  the  defeated  candidate  and  to  the 
government,  but  also,  as  is  the  case  frequently  in  the 
United  States,  to  any  elector.^ 

//. — Special  protection. 

The  second  right  of  officers  is  the  right  to  special 
protection  offered  by  the  criminal  law.  In  the  United 
States  and  England  this  protection  is  as  a  rule  extended 
only  to  certain  classes  of  officers,  viz.^  those  who  come 
in  contact  with  the  people  as  bearers  of  a  direct  com- 
mand of  a  competent  authority  to  do  or  not  to  do  some 
particular  thing.  Where  for  the  purpose  of  executing 
such  commands  it  is  necessary  for  such  officers  to  use 
force  they  may  do  so,  and  not  only  are  they  relieved 
from  responsibility  for  the  damage  which  they  may 
cause  but  the  law  has  declared  it  to  be  a  crime  to 
resist  them;  and  where  an  armed  resistance  is  offered 

•  Thus  see  45  and  46  Vict.,  c.  50,  sees.  77-104. 

'  See  for  the  poor-law  union  elections,  Chalmers,  Local  Government,  57. 
'  For  an  example  see  the  French  law  of  July  31,  1875,  governing  the  trial  ol 
contests  relative  to  the  general  council  elections. 


THE  RIGHTS  OF  OFFICERS.  65 

it  becomes  a  very  serious  matter  for  tlie  persons  who 
thus  offer  opposition.  These  officers  are  generally  to 
be  found  among  those  who  have  to  do  with  the  admin- 
istration of  justice,  the  collection  of  revenue,  and  the 
exercise  of  police  power.  For  example  the  United 
States  Revised  Statutes^  declare  resistance  to  a  cus- 
toms officer  in  the  execution  of  his  duties  to  be  a  crime 
punishable  by  fine  and  imprisonment,  which,  when  the 
offence  is  aggravated  by  the  use  of  a  deadly  weapon, 
may  be  as  long  as  ten  years.  Again  the  penal  code  of 
New  York  ^  declares  a  person  who  attempts  by  means 
of  any  threat  or  violence  to  prevent  an  executive  officer, 
i,  e.,  an  executive  officer  in  the  large  sense  of  the  word,^ 
from  performing  his  duty;  or  a  person  who  does 
actually  make  resistance  by  force  or  violence  to  any 
executive  officer  in  the  performance  of  his  duty,  to  be 
guilty  of  a  misdemeanor.*  The  offence  of  offering  re- 
sistance to  officers  in  the  performance  of  their  duties,  it 
will  be  noticed,  is  a  distinct  offence,  separate  and  apart 
from  the  simple  offence  of  violating  the  law  which  the 
officer  is  attempting  to  enforce  at  the  time  when  the 
resistance  is  offered.  The  latter  offence  is  an  offence 
against  the  law  itself,  while  resistance  to  an  officer  in 
the  performance  of  his  duty  is  more  in  the  nature  of  a 
personal  matter,  and  the  provisions  of  law  in  regard  to 
it  are  intended  to  protect  administrative  officers  in  the 
discharge  of  their  duties.^  This  protection  is  accorded 
to  them  only  during  the  discharge  of  their  duties. 
Assault,  it  would  seem,  might  be  made  upon  them 

*  Section  5447.  '  Sections  46,  47.  ^  As  defined  in  section  58. 

*  Cf.  Gneist.  Das  Englische  Verwaltungsrecht,  1884,  384. 

^  Cf.  In  r^Neagle,  135  U.  S.,  i,  64-68,  where  it  is  held  that  the  President 
of  the  United  States  may  provide  special  protection  for  United  States  officers 
in  the  discharge  of  their  duties. 

VOL.  II— 5 


66  THE  LAW  OF  OFFICERS. 

after  the  performance  of  duties  which  were  objectionable 
to  the  public  and  as  the  direct  result  of  such  perform- 
ance, when  such  assault  would  be  regarded  as  simply 
the  assault  of  a  private  person  and  punishable  as  such.* 
In  France  and  Germany  while  the  same  protection 
is  granted  to  public  officers  as  is  granted  in  England 
and  the  United  States,^  the  law  goes  a  step  further  and 
declares  that  all  outrage  and  violence  to  public  officers, 
either  during  the  discharge  of  their  duties  or  as  a  result 
of  such  duties,  are  punishable.^ 

///. — Promotion, 

In  the  United  States  both  in  the  national  and  the 
commonwealth  services  promotion  is  not  usually  re- 
garded as  a  right.  For  a  long  time  it  was  looked  upon 
as  a  new  appointment  and  even  at  the  present  time  is 
largely  so  regarded.  In  both  the  national  and  the 
commonwealth  services  the  civil-service  laws  and  rules 
attempt  to  prevent  the  positions  under  the  rules  from 
being  filled  by  the  promotion  of  persons  appointed  to 
positions  not  under  the  rules,  and  to  encourage  the  filling 
of  some  of  the  higher  positions,  in  what  is  regarded  as 
the  subordinate  service,  by  the  appointment  of  persons 
in  the  lower  positions,^  who  shall  be  advanced  for 
other  than  political  reason s.^     In  fact  the  New  York 

*  As,  e.g.^  the  assault  of  President  Garfield  by  Guiteau  ;  but  see  In  re  Neagle, 
supra,  II.,  65. 

^  Penal  Code,  arts.  209-221  ;  Reichstrafgesetzbtuh,  sections  11 2-1 14. 

^  Penal  Code,  arts.  222,  223,  with  the  cases  interpreting  these  articles  which 
may  be  found  in  any  one  of  the  annotated  codes.  See  the  recent  prosecution  of 
the  Archbishop  of  Aix  for  libelling  the  minister  of  public  worship.  Cf,  Stengel, 
Worterbuch,  etc.,  I.,  141. 

4  See  U.  S.  Law,  sec.  7  ;  N.  Y.  Rule  37. 

5  See  N.  Y.  Rules  32  and  33. 


THE  RIGHTS  OF  OFFICERS.  67 

law  has  formed  a  special  schedule  (E)  of  the  higher 
positions  under  the  rules,  entrance  to  which  is  confined 
to  the  persons  occupying  positions  in  the  lower  grades.^ 
Very  recently  also  the  national  commission  has  made  a 
tentative  step  in  the  same  direction  by  providing  rules 
for  promotion  in  the  New  York  custom-house  and  in 
certain  of  the  departments  in  Washington.^  Under 
these  rules  promotion  is  if  possible  confined  to  the 
persons  in  the  grades  immediately  inferior  to  that  to 
which  promotion  is  to  be  made,  and  in  the  examinations 
for  promotions  which  are  adopted,  and  which  are 
usually  pass  examinations,  the  greatest  weight  in  the 
marking  is  laid  upon  office  efficiency.  Where  such  a 
method  is  adopted  there  is  something  in  the  nature  of 
a  right  to  promotion,  a  right  which  is  possessed  only 
by  those  in  the  grades  immediately  inferior  to  the 
grade  to  which  the  promotion  is  to  be  made.  But  this 
claim,  if  we  may  call  it  so,  is  so  indefinite  that  it  may 
not  with  propriety  be  called  a  right. 

In  the  other  countries  the  rules  are  somewhat  the 
same  as  in  the  United  States,  promotion  being  regarded 
generally  as  a  new  appointment.  But  in  many  in- 
stances, within  each  grade  there  are  classes  to  each  of 
which  a  different  salary  is  attached  and  transfer  from 
one  class  to  another  vnthin  the  grade  is  usually  made 
as  a  result  of  seniority  of  service.^  In  England  this 
method  has  been  carried  the  farthest.  Thus  in  the 
lower  division  clerkships  the  salary  commences  at  £80 
and  rises  by  triennial  increments  of  JB15  to  £200.* 

»  N.  Y.  Rule  31. 

*  7th  Report  of  the  Commission,  74,  79  ;  9th  Ibid.,  60-63.     So  also  in  some 
cases  in  Massachusetts,  Rule  xliii. 

'  For  France  see  Block,  Diciionnaire,  etc.,  985. 

*  Order  in  Council,  Feb.  12,  1876,  cited  in  Crawley,  op.  ciU^  912. 


68  THE  LAW  OF  OFFICERS. 

IV. — Compensation. 

1.  Not  a  Goni/r actual  right. — The  fourtli  right  of 
importance  possessed  by  the  official  is  the  right  to  the 
payment  of  a  compensation.  This  right  is  not,  how- 
ever, a  contractual  right,  since  the  official  relation  is 
not  a  contractual  relation.  If  the  right  to  compensa- 
tion exists  at  all  it  exists  as  the  result  not  of  a  contract 
or  by  virtue  of  any  service  rendered  to  the  govern- 
ment but  because  the  law  has  attached  the  compensa- 
tion to  the  office.^  A  person  who  accepts  office  to 
which  no  compensation  is  attached  by  law  is  presumed 
to  undertake  the  office  gratuitously^  and  cannot  re- 
cover anything  on  the  ground  of  an  implied  contract  to 
pay  what  the  service  is  worth.^  The  rule  is  otherwise 
where  a  person  undertakes  to  render  service  to  a  mu- 
nicipal corporation  at  its  request  not  as  a  public  officer 
but  as  a  private  agent.'*  It  has  been  held  that  such  an 
agent  may  be  a  public  officer  provided  that  the  service 
he  renders  is  absolutely  foreign  to  the  office  which  he 
holds.5 

The  official  relation,  not  being  a  contractual  relation, 
and  the  existence  of  the  right  to  compensation  being 
dependent  upon  the  law,  we  must  go  to  the  law  to  find 
if  there  is  a  salary  attached  to  any  given  office.  As  a 
general  rule  it  is  true  that  a  salary  or  compensation  is 

*  Fitzsimmons  v.  Brooklyn,  102  N.  Y.,  536,  539  ;  People  v.  Police  Commis- 
sioners, 114  N.  v.,  245,  247. 

'  State  V.  Brewer,  59  Ala.,  130. 

'  Goddard  v.  Petersham,  136  Mass.,  235  ;  White  v.  Levant,  78  Me.,  568  ; 
Talbot  V.  East  Machias,  76  Me.,  415  ;  see  also  Bikes  v.  Hatfield,  13  Gray, 
Mass.,  347. 

*  Lindabury  v.  Freeholders,  47  N.  J.  L.,  417  ;  Detroit  v.  Redfield,  19  Mich., 
376  ;  Converse  v.  U.  S.,  21  How.  U.  S.,  463. 

^Ibid.,  Evans  v.  Trenton,  24  N.  J.  L.,  764;  but  see  Sidway  v.  Commissioners, 
120  111.,  496, 


THE  RIGHTS  OF  OFFICERS.  69 

attached  by  law  to  all  the  positions  in  the  national  ser- 
vice of  the  United  States/  The  same  rule  is  true  of 
the  central  commonwealth  service,  though  there  are 
more  exceptions  to  the  rule.  In  the  local  common- 
wealth services  it  is  also  the  rule  though  the  excep- 
tions become  much  more  frequent.  As  a  general  rule 
the  compensation  is  fixed  by  statute.  In  the  national 
service  this  is  especially  true.  In  the  statutes  we  find 
in  connection  with  each  position  of  any  importance  a 
statement  of  what  is  its  salary.  For  the  clerical  ser- 
vice  in  the  departments  at  Washington  we  find  a  regu. 
lar  classification  of  salaries  which  was  made  in  1853, 
In  the  commonwealths  the  salaries  of  the  important 
positions  are  fixed  by  statute,  but  here  more  frequently 
than  in  the  national  service,  where  it  is  sometimes  the 
case,  the  salaries  are  fixed  by  departmental  regulations 
with  the  result  of  a  great  lack  of  uniformity  in  the 
salaries  of  persons  doing  the  same  kind  of  work  in  dif- 
ferent departments.  The  compensation,  however  it 
may  be  fixed,  may  be  changed  by  the  authority  fixing 
it,  provided  no  higher  law,  such  as  the  constitution 
when  it  is  fixed  by  statute  or  the  statutes  if  it  is  fixed 
by  departmental  regulation,  prevents.^  It  may  be 
altered,  diminished,  or  altogether  terminated  during 
the  term  of  office  of  the  incumbent,  and  such  change 
will  not  be  regarded  as  impairing  the  obligation  of  a 
contract  since  the  official  relation,  as  has  so  often  been 
said,  is  not  a  contractual  relation.^     But  the  act  chan- 

*  There  are  a  few  exceptions  to  this  rule,  as  e.  g.  the  board  of  Indian  com- 
missioners, U.  S.  Rev.  Stats.,  sec.  2039. 

»  Kahn  v.  State,  93  N.  Y.,  291. 

'  Butler  V.  Pennsylvania,  10  How.  U.  S.,  402  ;  Koontz  v.  Franklin  Co.,  76 
Pa.  St.,  154;  Wyandotte  v.  Drennan,  46  Mich.,  478;  Conner  v.  Mayor,  5 
N.  v.,  285. 


70  THE  LA  W  OF  OFFICERS. 

ging  the  compensation  must  be  clear  and  explicit.  Thus 
the  mere  appropriation  of  a  sum  of  money  less  than 
the  salary  does  not  have  the  effect  of  changing  the 
compensation^  unless  the  legislature  says  expressly 
that  the  new  appropriation  shall  be  full  compensation.^ 
It  is,  however,  a  very  common  provision  in  the  United 
States  commonwealth  constitutions  or  statutes  that 
the  salary  or  compensation  shall  not  be  increased  or 
diminished  during  the  term  of  office  of  the  incumbent.^ 
If,  however,  the  services  have  been  rendered,  a  contract 
to  pay  for  them  at  the  rate  fixed  by  law  is  implied, 
which  cannot  be  impaired  even  by  the  legislature.*  A 
further  result  of  the  fact  that  the  official  relation  is 
not  a  contractual  relation  is  that  the  incumbent  does 
not  lose  his  right  to  his  compensation  by  reason  of  his 
inability,  as  e.  g,  from  sickness,  to  discharge  the  duties 
of  the  office.  So  long  as  he  holds  the  office  he  has  the 
right  to  the  compensation.^  Finally  if  he  is  illegally  pre- 
vented by  his  superiors  from  discharging  his  duties,  as 
by  an  unauthorized  removal,  he  still  does  not  lose  his 
claim  to  his  compensation,  and  is  not  obliged  to  deduct 
fi'om  his  salary  what  money  he  earns  during  the  period 
of  his  absence  from  duty.^ 

2.  How  fixed  in  amount, — The  amount  of  the  salary 
attached  to  the  office  may  be  fixed  or  may  depend  on 
the  amount  of  business  done  in  the  office,  i.  e.y  may 
consist  wholly  or  partly  of  fees.  The  latter  method 
is  very  common  in  the  consular  and  customs  services  of 

1  U.  S.  V.  Langston,  ii8  U,  S.,  389;  State  v.  Steele,  57  Tex.,  200;  People 
V.  McCall,  65  How.  Pr.,  442. 

2  U.  S.  V.  Fisher,  109  U.  S.,  143  ;  U.  S.  v.  Mitchell,  Ibid. 

^  See  Stimson,  American  Statute  Law,  sec.  214;  Mechem,  op.  cit.,  sec.  858  ; 
cf.  for  the  compensation  of  the  President,  U.  S.  Const.,  Art.  II.,  sec.  i,  par.  7. 
^  Fisk  V.  Police  Jury,  116  U.  S.,  131  ;  Stewart  v.  Police  Jury,  Ibid.,  135. 
5  O'Leary  v.  Board  of  Education,  93  N.  Y.,  i. 
'  Fitzsimmons  V.  Brooklyn,  102  N.Y.,  536;  Andrews  v.  Portland,  79  Me.,  484. 


THE  RIGHTS  OF  OFFICERS.  71 

the  national  government  and  in  the  local  offices  in  the 
commonwealths.  The  advantage  of  the  fee  system 
consists  in  the  fact  that  the  salary  or  compensation  is 
paid  under  it  by  those  persons  who  make  use  of  the 
office  to  which  the  fees  are  attached.  Its  disadvantage 
is  to  be  found  in  the  fact  that  on  account  of  the  small- 
ness  of  the  fee  usually  required,  extortion  is  not  un- 
frequently  practised  by  officers  and  submitted  to  by 
the  public,  notwithstanding  the  most  stringent  penal 
provisions  that  may  be  passed  to  prevent  it.  The  com- 
pensation actually  received  is  out  of  all  proportion  to 
the  work  done,  and  comes  to  be  regarded  rather  as  a 
reward  for  political  service  than  as  a  compensation  for 
work  done.  On  this  account  the  tendency  at  present  is 
to  replace  fees  by  fixed  salaries.  Another  method  of 
fixing  the  amount  of  the  compensation  is  to  pay  so 
much  for  each  day's  service  rendered  by  the  officer. 
This  system  of  jper  diem  allowances,  as  it  is  called,  is 
quite  common  in  the  localities  where  the  public  busi^ 
ness  is  so  arranged  as  to  require  a  great  number  of 
officers  who  shall  devote  only  a  part  of  their  time  to 
the  public  service.  Still  another  method  of  fixing  the 
amount  of  the  salary  is  to  be  found  in  the  national 
postal  service,  where  the  compensation  of  postmasters 
is,  within  certain  limits,  determined  by  the  receipts^  of 
their  offices,  i.  e.,  by  the  number  of  postage  stamps  sold.^ 
Finally  it  is  to  be  noticed  that  the  salary  or  compen- 
sation of  public  officers  is  from  motives  of  public  policy 
not  subject  to  garnishment  or  attachment.  ^  Nor  may 
a  future  salary  generally  be  assigned.  ^ 

•  U.  S.  Rev.  Stats.,  sees.  3852-3857. 

'  See  Mechem,  op.  cii.,  sec.  875  ;  Buchanan  v.  Alexander,  4  How.  U.  S.,  20. 

^  Bliss  V.  Lawrence,  58  N.  ¥.,  442  ;  Beal  v.  McVicker,  8  Mo.  App.,  202  ; 
but  see  State  Bank  v.  Hastings,  15  Wise,  78,  which  held  the  contrary,  apply- 
ing to  this  public  legal  relation  the  rules  of  purely  private  law. 


72  THE  LA  W  OF  OFFICERS. 

3.  How  enforced, — The  claim  for  compensation  has 
been  spoken  of  as  a  right  on  the  part  of  the  officers. 
This  description  of  it  is  not  in  all  cases  correct,  or  has 
not  until  quite  recently  been  correct.  Where  the 
compensation  consists  of  fees  to  be  paid  by  third  per- 
sons employing  the  official,  the  officer  has  an  actual 
right  to  the  payment  of  the  fees  as  fixed  by  law  and 
may  retain  any  documents  in  his  possession  in  or  about 
which  he  has  expended  labor  until  the  fees  are  paid.^ 
If  paid  by  the  public,  however,  he  cannot  recover  any- 
thing from  a  third  party,  even  if  such  third  party  has 
promised  to  pay  him.^ 

Where,  however,  the  officer's  compensation  consists 
of  a  salary  which  is  to  be  paid  by  the  government  it 
would  seem  that  if  there  is  no  special  law  permitting 
him  to  sue  the  government,  and  if  he  cannot  put  his 
claim  into  such  a  shape  as  to  make  some  one  of  the 
various  municipal  corporations  or  quasi  municipal  cor- 
porations responsible  for  it,  he  has  in  many  cases  no 
claim  which  is  enforceable  in  a  court  of  law.  This 
fact  is  due  to  the  principle  that  the  government  may 
/  not  be  sued  without  its  consent.^  In  the  national  gov- 
ernment, as  a  result  of  a  special  statute,  officers  may 
sue  the  government  in  the  courts  for  their  compensa- 
tion.'^ In  the  commonwealths  as  yet  the  general  rule 
is  that  officers  may  not  sue  the  central  government  for 
their  salaries.  But  it  must  be  remembered  that  many 
of  the  officers  who  are  discharging  duties  which  affect 

*Mechem,  op.  cit.,  sees.  887-888  ;   Baldwin  v.  Kouns,  81  Ala.,  272  ;  People 
V.  Harlow,  29  111. ,  43  ;  see  also  Ripley  v.  Gifford,  1 1  Iowa,  367. 

*  People  V.  Marble,  118  Mass.,  548  ;  Hatch  v.  Mann,  15  Wendell,  N.  Y,,  44. 

*  Infra,  II.,  p.  154. 

*  Infra,  Patton  v.   U.  S.,  7  Ct.  of  Claims,  362;  U.  S.  v.  Langston,  118 
U.  S.,  389. 


THE  RIGHTS  OF  OFFICERS.  73 

the  commonwealth  at  large,  and  who  are  therefore 
somewhat  central  in  character,  are  paid  by  the  various 
local  corporations  which  are  subjects  of  private  law 
and  may  therefore  be  sued/  Finally  if  the  duty  is 
imposed  upon  any  individual  officer,  even  of  the  cen- 
tral government  of  the  commonwealth,  to  pay  the 
legal  compensations  of  other  officers,  and  he  should 
refuse  so  to  do,  he  might  be  forced  to  act  by  means  of 
the  writ  of  mandamus?  Thus  at  the  present  time  the 
claim  of  almost  every  officer  in  the  administrative  system 
to  his  salary  or  compensation  is  enforceable  by  some  sort 
of  judicial  proceedings,  and  may  therefore  be  regarded 
as  an  actual  right  over  whose  existence  and  extent  the 
courts  and  not  the  administration  are  to  decide  as  in 
the  case  of  any  other  private  right. 

Some\^^hat  akin  to  the  right  to  recover  compensation 
is  the  right  which  all  officers  possess  to  force  the  pay- 
ment to  them  of  all  the  expenses  which  they  have  been 
obliged  to  incur  in  order  to  discharge  their  duties. 
This  is  true  whether  the  expense  has  been  incurred  for 
the  government  or  for  an  individual.^ 

In  some  cases  pensions  or  superannuation  allowances 
are  included  within  the  compensation.  But  in  the 
United  States  this  matter  has  received  almost  no  at- 
tention, such  allowances  being  found  almost  only  in 
the  case  of  certain  of  the  judges  of  the  national  courts 
and  in  the  police  and  fire  departments  of  the  munici- 
palities.'* 

^  Infra,  II.,  p.  152. 

^  Wi^,  Extraordinary  Legal  Remedies,  '2d  Ed.,  105  ;  Turner  v.  Melvay,  13 
Cal.,  621  ;  see  also  Nichols  v.  Comptroller,  4  Stew,  and  Port.,  Ala.,  154. 

3  Powell  V.  Newbury,  19  Johns.,  N.  Y.,  284  ;  Andrews  v.  U.  S.,  2StoryC.C., 
202  ;  U.  S.  V.  Flanders,  112  U.  S.,  88. 

*  E.  g.   see  N.  Y.  L.,  1882,  c.  410,  sees.  303-309. 


74  THE  LA  W  OF  OFFICERS. 

4.  Compensatio'n  in  other  countries. — In  the  other 
countries  the  rules  with  regard  to  salaries  are  very 
much  the  same  as  here,  with  the  exception  that  in  Ger- 
many there  are  many  more  absolutely  unpaid  officers. 
Further  the  salaries  are  regulated  in  much  the  same 
manner,  with  the  exception  that  in  France  and  Ger- 
many the  salary  of  central  officers  is  usually  composed 
of  two  quite  separate  portions,  one  of  which,  viz.,  that 
which  is  regarded  as  the  compensation  for  the  work 
done  being  everywhere  throughout  the  country  the 
same  for  the  same  work,  the  other  varying  with  the 
locality  in  which  the  office  is  situated  in  accordance 
with  the  expense  of  house  rent.  This  is  often  called 
the  indemnity  of  residence.^  Payment  of  the  salary 
may  in  France  be  enforced  by  appeal  to  the  adminis- 
trative courts  which  have  sole  jurisdiction  over  this 
matter,^  in  Germany  by  appeal  to  either  the  ordinary 
judicial  or  the  administrative  courts,  which  have  concur- 
rent jurisdiction  of  the  matter,^  and  in  England  by 
means  of  the  petition  of  right  when  the  claim  is 
against  the  central  government,  or  by  suit  when  against 
the  local  corporations.-* 

5.  Civil  pensions, — In  all  these  countries,  however, 
the  compensation  includes  a  claim  to  a  superannuation 
allowance.  These  superannuatic^n  allowances  or  pen- 
sions for  civil  officers  seem  first  to  have  been  intro- 
duced into  France,  and  the  method  adopted  there  has 
in  its  main  features  been  adopted  in  both  Germany 
and  England.  The  most  important  law  regulating  this 
matter  in  France  is  the  law  of  June  9,  1853.     By  this 

'  E.  g.  see  Block,  DicHonnaire ,  etc.,  978,  c.  xi. 

*  Laferriere,  La  Juridiction  Administrative,  II.,  186. 

•  Schulze,  op.  cit.,  I.,  338.  •*  Infra,  II.  p.  154. 


THE  RIGHTS  OF  OFFICERS.  75 

law  the  right  to  the  pension  is  acquired  by  the  attain- 
ment of  sixty  years  of  age  and  after  thirty  years  of 
service.  These  limits  are  reduced  in  exceptional  cases 
to  fifty-five  and  twenty-five  respectively.  The  amount 
of  the  pension  is  based  on  the  average  salary  for  the 
last  six  years  of  service  ;  one  sixtieth  of  such  average 
salary  being  granted  for  each  year  of  service  up  to  a 
maximum  of  forty-five  sixtieths.  Further,  in  order  to 
prevent  the  budget  from  being  too  heavily  burdened 
the  law  provides  that  new  pensions  may  be  granted  each 
year  only  in  so  far  as  old  pensions  have  been  extin- 
guished during  the  preceding  year.  No  ofiicer,  there- 
fore, may  at  any  given  time  demand  that  his  pension 
be  given  him  even  if  he  is  sixty  years  of  age  and  has 
served  for  thirty  years.  He  must  wait  until  an  old 
pension  has  been  extinguished.  These  pensions  are 
paid  partly  out  of  deductions  made  from  the  salaries 
of  officers  and  partly  from  appropriations  made  by  the 
legislature.  The  deduction  usually  made  is  ^y%  per 
cent,  of  the  salary.  Finally  the  widow  and  children 
of  a  pensioner  are  granted  certain  claims  also  under 
this  law.  All  questions  relating  to  the  pensions,  L  e.y 
as  to  the  amount,  and  the  fulfilment  of  the  necessary 
conditions  for  obtaining  the  pension  are  decided  by 
the  administrative  courts.^ 

In  Germany  the  main  principles  are  the  same.  The 
only  marked  exception  is  that  only  ten  years  of  service 
after  the  twenty-first  year  of  age  are  required,  when 
the  pensioner  would  receive  fifteen  sixtieths,  of  the 
last  salary  and  one  sixtieth  for  every  additional  year. 
But,  as  in  France,  the  maximum  pension  obtainable  is 
forty-five  sixtieths  and  the  age  at  which  the  pension  is 

*  Laferri^re,  op.  cit.,  II.,  19a 


76  THE  LA  W  OF  OFFICERS. 

granted  is  sixty-five.^  Pension  claims  are  decided  by 
either  tlie  ordinary  judicial  courts  or  by  the  administra- 
tive courts. 

In  England  superannuation  allowances  are  regulated 
by  several  statutes,  the  most  important  of  which  is  22 
Vict.  c.  26  which  does  not,  however,  apply  to  all 
branches  of  the  service.  By  this  law  the  pension  is 
acquired,  as  in  Germany,  by  ten  years  of  service  when 
ten  sixtieths  of  the  last  salary  are  given,  and  rises  one 
sixtieth  a  year  up  to  a  maximum  of  forty  sixtieths. 
Sixty  years  of  age  are  required,  but  provision  is  made 
for  dispensing  with  this  condition  in  case  the  appli- 
cant brings  evidence  to  the  authorities,  which  shall 
consist  of  a  medical  certificate,  that  he  is  permanently 
incapacitated  for  the  performance  of  his  duties.  The 
pension  claim  may  be  enforced  by  mandamus.^  A 
later  statute  ^  provides  that  the  pension  may  be 
capitalized. 

^  See  Prussian  Laws,  March  27,  1872  ;  March  31,  1882  ;  Imperial  Law,  March 
31,  1873  ;  Stengel  Worterbuchy  sub  verb.  Beamte,  Pension. 
^  Todd,  op.  cii.,  I.,  654,  note  and  authorities  cited. 
'  34  and  35  Vict.,  c.  36. 


CHAPTER  V. 

THE  DUTIES  OF  OFFICERS. 

In  the  following  treatment  of  the  duties  of  of&cers 
it  is  not  intended  to  discuss  the  various  matters  of 
official  routine  which  are  in  the  sphere  of  competence 
of  all  officers,  but  to  refer  to  those  general  obligations  X 
which  every  one  assumes  who  enters  into  the  official 
relation.  Before  attempting  to  make  any  classification 
of  these  general  obligations,  it  will  be  well  to  allude 
to  a  general  principle  of  the  law  which  is  of  great  im- 
portance. This  is  that  a  statute  which  apparently  con- 
fers merely  a  power  upon  an  officer  may  be  construed  * 
as  imposing  a  duty  upon  him.  For  in  many  cases  it  is 
one  of  the  duties  of  an  officer  to  exercise  his  powers. 
Thus  a  statute  which  says  that  an  officer  may  do  a  cer- 
tain thing  is  often  construed  as  meaning  that  the  offi- 
cer shall  do  the  thing.  The  rule  as  to  when  such  a 
statute  will  be  construed  as  imposing  a  duty  has  been 
well  laid  down  in  the  case  of  Mayor  v.  Furze^  ^  in  which 
it  was  held  that  a  statute,  conferring  a  power  upon  a 
municipal  corporation  to  make  and  repair  sewers,  im- 
posed upon  such  corporation  the  duty  of  repairing  the 
sewers.  Judge  Nelson  laid  down  the  rule  as  follows  : 
"  Where  a  public  body  or  officer  has  been  clothed  by 
statute  with  power  to  do  an  act  which  concerns  the 
public  interest  or  the  rights  of  third  persons,  the  exe- 

»  3  Hill,  N.  Y.,  612. 

77 


78  THE  LA  W  OF  OFFICERS. 

cution  of  the  power  may  be  insisted  on  as  a  duty^ 
thougli  the  phraseology  of  the  statute  be  permissive 
merely  and  not  peremptory."  ^  Finally,  while  in  gen- 
eral a  discretionary  power  may  be  exercised  in  such  a 
manner  as  the  officer  having  the  discretion  shall  see  fit, 
still  it  is  generally  the  duty  of  such  officer  to  make 
some  exercise  of  his  discretion.^ 

The  general  obligations  which  are  imposed  upon 
officers  are  of  two  kinds.  In  the  first  place  the  law 
states  positively  certain  things  which  all  officers  must 
or  must  not  do,  and  provides  penalties  of  a  criminal 
character  for  disobedience  of  its  provisions.  In  the 
second  place  the  very  existence  of  the  official  relation 
makes  it  necessary  that  an  officer  shall  or  shall  not  do 
certain  things  or  shall  behave  towards  the  public  in  a 
certain  way.  The  first  class  of  duties  are  largely  nega- 
tive in  character  and  the  rules  of  law  which  contain 
them  form  a  sort  of  special  criminal  law  for  officers,  in 
that  the  law  imposes  criminal  punishment  upon  their 
violation.  The  second  class  of  duties  are  more  posi- 
tive in  character  and  form  a  sort  of  official  code  of 
ethics,  which  can  be  maintained  in  those  countries 
where  an  official  esj^rit  du  corps  has  not  been  developed, 
only  by  the  existence  of  a  strong  disciplinary  power. 
Where  great  reliance  has  been  placed  upon  the  esprit 
du  corpSj  or  where  the  disciplinary  power  is  large,  it 
will  not  be  necessary  to  form  a  very  large  official  crimi- 
nal code.  Where,  however,  this  official  esprit  du  eorps 
is  not  to  be  found  or  where  the  disciplinary  power  is 
jslight  we  find  a  large  official  criminal  code. 

*  Cf.  Mechem,  op.  cit.,  sec.  593. 

•Board  of  Police  v.  Grant,  17  Miss.,  77;  Hightower  v.  Ooverhaulser,  65 
Iowa,  347  ;  People  v.  Auditors,  82  N.  Y.,  80. 


THE  DUTIES  OF  OFFICERS.  79 

/. — Duties  with  a  penal  sanction. 

1.  Comrrwri  law  crimes  of  officers, — In  the  first  place 
it  may  be  laid' down  that  officers  even  more  than  ordi-/( 
nary  persons  are  bound  to  obey  the  law.  The  crimi- 
nal law  of  almost  every  countiy  regards  as  a  crime 
almost  every  act  of  an  officer  which,  if  committed  by 
an  individual,  would  be  a  crime.  ^  But  further  the 
criminal  law  of  England  and  the  United  States  declares 
any  act  or  omission  in  disobedience  of  official  duty  by 
one  who  has  accepted  office,  "  when  it  is  of  public  con- 
cern, to  be  a  crime."  ^  The  endeavor  is,  however,  made 
to  distinguish  between  discretionary  and  ministerial 
officers.  The  general  rule  is  particularly  applicable, 
says  Mr.  Bishop,  "  where  the  thing  required  to  be 
done  is  of  a  ministerial  or  other  like  nature,  and 
there  is  reposed  in  the  officer  no  discretion."  In  the 
case  of  officers  acting  with  discretion  the  act  to  be  pun- 
ished criminally  must  be  wilful  and  corrupt.  ^  But  it 
is  to  be  noted  that  the  law  excepts  the  highest  officers 
of  state  from  this  criminal  common  law  liability  for 
mis-feasance  or  non-feasance  in  office.  *  In  these  cases 
the  control  of  the  legislature  ^  is  regarded  as  sufficient. 
In  some  of  the  commonwealths  this  common-law  lia- 
bility is  increased  by  statute  so  as  to  make  the  mere 
wilful  violation  of  official  duty  without  corrupt  motives 
punishable  criminally.  ^ 

*See  Bishop,  Criminal  Law,  II.,  sec.  982  ;  Block,  Dictionnaire,  etc.,  981  ; 
Loening,  Deutsches  Verwaliungsrecht,  126. 

'Bishop,  op.  cit.,  sec.  459  ;  Gneist,  Das Englische  Verwaltungsrecht,  381. 

*  People  V.  Coon,  15  Wendell,  N.  Y.,  277  ;  People  v.  Norton,  7  Barbour, 
N.  Y.,477  ;  Gneist,  op.  cit.,  381. 

*  Bishop,  op.  cit.,  I.,  sec.  462  ;  Gneist,  op.  cit.,  383. 
*•  For  which  see  infra,  II.,  p.  296. 

*  So  in  New  York.     See  People  v.  Brooks,  i  Denio,  457,  construing  a  pro- 
vision of  the  revised  statutes. 


8o  THE  LAW  OF  OFFICERS. 

2.  Statutory  official  crimes. — Further  in  both  Eng- 
land  and  the  United  States  certain  specific  acts  by  cer- 
tain specific  officers  or  by  officers  generally  are  by 
statute  expressly  made  punishable  criminally.  Thus 
the  new  civil-service  laws  of  the  United  States  have 
provided  that  it  shall  be  a  crime  for  any  officer  to 
solicit  or  receive  assessments  for  the  payment  of  party 
expenses  from  any  one  in  the  service.^  It  would  be  of 
course  impossible  to  enumerate  these  criminal  provi- 
sions imposing  punishments  upon  officers  for  the  doing 
of  illegal  acts.  All  that  need  be  said  about  the 
system  in  the  United  States  and  England  is  that  this 
L  method  of  enforcing  the  performance  by  officers  of 
their  duties  has  been  carried  further  than  in  almost 
any  other  country,  and  simply  for  the  reason  that  the 
general  disciplinary  powers  of  the  higher  administra- 
tive officers  are  rather  weaker  in  the  United  States 
and  England  than  elsewhere.^ 

In  neither  France  nor  Germany  are  the  duties  of 
officers  enforced  so  commonly  in  this  way.  In  the 
first  place  there  is  no  common-law  liability  for  mere 
mis-feasance  or  non-feasance  in  office.^  It  is  to  be 
noted  also  that  while  in  France  the  highest  officers  of 
state  are  as  in  the  United  States  not  criminally  liable 
before  the  ordinary  courts,  in  Germany  no  such  excep- 
tion is  made.'*  The  method  in  both  France  and  Ger- 
many is  to  enumerate  certain  acts  which,  when  done 
by  officers,  shall  be  punished    criminally.     In  many 

'  U.  S.  L.,  sees.  11-14  ;  N.  Y.  L.,  sees.  11-14. 

*  M.  Laferriere  in  his  work  on  La  yuridiction  Administrative  has  ealled  at- 
tention to  this  peculiarity  of  the  American  law.     See  I.,  loi. 

^  See  Gneist,  Das  Englische  Verwaltungsrecht,  381,  note  ;  Loening,  Deutsches 
Verwaltungsrecht^  127. 

*  Laferriere,  op.  cit.,  I.,  660  ei  seq.  ;  Bornhak,  Preussisches  Verwaltungsrecht^ 
I.,  144,  sec.  24. 


THE  DUTIES  OF  OFFICERS.  8i 

cases  the  same  acts  which  are  prohibited  or  com- 
manded by  the  law  of  the  United  States  are  pro- 
hibited or  commanded  under  siniilar  criminal  penalties 
by  the  law  of  both  France  and  Germany.  Thus  it 
seems  to  be  the  general  rule  everywhere  that,  where 
the  official  oath  is  prescribed,  as  it  so  generally  is,  it  is 
the  duty,  sanctioned  by  a  criminal  penalty,  of  the  offi- 
cer to  take  such  oath  before  he  enters  upon  the  per- 
formance of  the  duties  of  the  office.  The  taking  of  it 
is  not,  however,  generally  regarded  as  a  qualification 
for  the  office,  but  a  duty  whose  violation  is  to  be  pun- 
ished criminally.^  The  same  is  true  of  the  filing  of 
the  official  bond  or  the  deposit  of  security,  where  that 
is  required.  It  is  to  be  noticed  that  the  rules  on  the 
continent  are  generally  much  more  strict  in  this  respect, 
particularly  where  the  officer  is  in  charge  of  public 
funds.^  On  the  continent  the  deposit  of  some  valuable 
security,  either  money  on  which  the  government  will 
pay  the  officer  interest,  or  the  deposit  of  state  stocks, 
is  often  required.  When  this  is  required,  the  govern- 
ment has  the  rights  of  a  pledgee  over  the  deposit, 
which  is  regarded  as  in  the  nature  of  collateral  secu- 
rity.^ In  some  cases  the  fulfilling  of  these  formalities 
is  expressly  made  something  more  than  a  mere  duty, 
and  becomes  a  necessary  qualification  in  order  to  the 
filling  of  the  office.  In  such  cases  all  acts  of  the  officer, 
performed  before  the  oath  is  taken  or  the  bond  filed 
or  security  given,  are  void  and  of  no  effect.  But  this 
\  is   rare.*      In  the  second  place  it  is  very  commonly 

*  See  Mechem,  op.  cit.^  sees.  255  et  seq. ;  Schulze,  Deutsches  Staatsrecht^  I,, 
323  ;  Block,  Dictionnaire,  etc.,  976  et  seq. 

^  See  Mechem,  op.  cit.,  sees.  263  et  seq. ;  Schulze,  loc.  cit.  ;  Block,  loc.  cit. 
'  Schulze,  loc.  cit. ;  Block,  loc.  cit. 

*  Cf.  Block,  20,  42,  357,  977. 

VOL  11—6 


82  THE  LA  W  OF  OFFICERS. 

provided  that  the  attempt  of  an  officer  to  extort  from 
/persons  doing  business  with  his  office  larger  fees  than 
are  provided  by  law  shall  be  regarded  as  a  crime,  viz.^ 
the  crime  of  extortion/  Finally  it  is  very  generally 
-L  provided  that  the  revealing  of  state  secrets  is  a  crime, 
and  where  this  is  not  expressly  provided  such  action 
might  be  regarded  in  some  cases  as  treason.^  In  many 
countries  officers  may  not  be  forced  in  court  to  testify 
to  anything  which  is  regarded  as  affecting  disadvan- 
tageously  the  service  of  the  country.^ 

//. — Duties  of  a  moral  character. 
The  second  class  of  duties  to  which  allusion  has 
been  made  are  more  moral  than  legal  in  character,  are 
largely  based  on  executive  usage,  and  owe  their  force 
almost  entirely  to  the  existence  in  the  executive  of  a 
disciplinary  power.  Although  they  may  in  some 
cases  be  sanctioned  by  criminal  penalties,  as  in  the 
class  of  duties  just  considered,  still  they  will  never  be 
well  performed  unless  through  the  long-continued  ex- 
ercise of  a  strong  disciplinary  power  there  has  grown 
up  in  the  civil  service  an  esprit  du  corps  similar  to  that 
which  is  found  in  the  military  service  and  which  for- 
bids an  officer  to  be  guilty  of  conduct  which  is  unbe- 
coming an  officer  and  a  gentleman.  These  duties,  so 
far  as  they  may  be  classified  at  all,  may  be  classified 
under  the  following  heads  : 

1.  Obedience  to  orders. — The  general  duty  of  obe- 
dience   to   the   orders   of   superior  officers   is   to   be 

^  See  for  the  United  States,  U.  S.  Stats,  at  Large,  IV.,  ii8  ;  N.  Y.  Penal 
Code,  sec.  557  ;  for  France,  Penal  Code,  art.  160. 

*  French  Penal  Code,  art.  80. 

'  See  German  Code  of  Civil  Procedure,  sec.  341  ;  German  Code  of  Criminal 
Procedure,  sec.  53  ;  Block,  op.  cit.,  981  ;  cf.  Greenleaf  on  Evidence  14th  Ed., 
sees.  250,  251  ;  Marbury  v.  Madison,  i  Cranch,  137. 


THE  DUTIES  OF  OFFICERS.  83 

found  in  all  hierarchically  organized  administrative 
systems,  and  can  in  the  nature  of  things  exist  only  in 
such  systems.  But  the  different  countries  differ  much 
in  the  responsibility  which  officers  assume  in  obeying 
orders.  In  the  United  States,  England,  and  in  the 
Imperial  service  of  Germany  no  officer,  even  where 
the  service  has  been  hierarchically  organized,  is  re- 
lieved from  responsibility  over  against  third  persons 
for  violating  the  law  or  the  constitution,  because  he 
has  obeyed  the  orders  of  his  superior  ^ ;  and  in  case  he 
disobeys  orders  he  may  be  subjected  to  the  exercise  of 
the  disciplinary  power  of  his  superior  where  no  limit 
has  been  placed  upon  such  power.  On  the  continent, 
however,  in  some  cases  an  officer  who  has  obeyed  orders 
is  relieved  from  all  responsibility  which  is  to  be  as- 
sumed by  the  officer  giving  the  orders.^ 

2.  Prompt  performa/nce  of  the  duties  connected  with 
the  office. — This  general  duty  differs  considerably  in  its 
content  in  different  states.  But  in  all  it  means  the 
uninterrupted  performance  of  the  duties  of  the  office, 
except  where  leave  of  absence  has  been  granted  by 
the  superior  as  in  case  of  legal  vacations  and  sick- 
ness. In  some  states  it  means  also  residence  at  the 
place  where  the  office  is  situated.^  In  the  United 
States,  however,  this  would  not  seem  to  be  universally 
or  even  commonly  the  rule.  In  some  states  also  it 
means  the  devotion  of  the  entire  time  of  the  officer  to 
the  duties  of  the  office,  i.  e.,  the  officer  is  forbidden  to 
engage  in  any  other  occupation.*  In  the  United 
States  and  England  this  does  not  seem  to  be  generally 
the  rule.     Of  course  there  are  a  great  number  of  offi- 

^  Infra,  II.,  p.  166.  ^  Stengel,  Worterbuch,  I.,  140. 

*  Loening,  op.  cit.,  123.  *  IHd. 


84  THE  LAW  OF  OFFICERS. 

cers  even  in  these  countries  where,  in  the  nature  of 
things,  the  duties  of  the  office  will  be  so  absorbing 
that  the  officer  will  have  no  tinie  to  devote  to  any- 
other  occupation.  But  when  this  is  the  case,  it  is  a 
practical  outcome  of  th.e  position  rather  than  a  legal 
rule.  Seldom  is  it  the  rule  in  these  countries  that  an 
officer  has  not  the  right  to  engage  in  other  occupations 
if  he  can  in  the  nature  of  things  do  so.  Many  of  the 
higher  officers  in  the  United  States  who  receive  large 
salaries  and  have  very  responsible  duties  to  perform 
are,  at  the  same  time  that  they  are  holding  office, 
engaged  in  some  other  occupation,  such,  e.  g,^  as  the 
practice  of  the  legal  profession.  They  in  these  cases 
simply  superintend  the  performance  of  the  work  of 
their  offices,  leaving  most  of  the  routine  work  to  be 
attended  to  by  deputies.  Our  system  makes  it  neces- 
sary to  permit  the  higher  officers,  at  any  rate,  to  engage 
in  othef  occupations  because,  on  account  of  the  legal 
precariousness  of  the  official  tenure  and  of  the  actually 
frequent  changes  made  in  the  offices,  it  is  almost  impos- 
sible to  demand  of  any  man  that  he  shall  give  up  his 
entire  time  to  his  official  work.  Our  system,  when  not 
carried  too  far,  has  also  its  advantages  since  by  its 
means  we  obtain  a  real  self-government  system  of  ad- 
ministration. On  the  continent  of  Europe  the  rule  is 
quite  different.  Office-holding  is  there  regarded  very 
much  more  as  a  profession  to  which  the  officer  must 
devote  his  cintire  time.^ 

3.  Good  conduct. — The  duty  of  good  conduct,  ?*.  ^., 
courteous  behavior  to  the  public  and  generally  orderly 
conduct,  is  a  duty  almost  altogether  of  a  moral  char- 
acter and    is  hardly  susceptible    of    legal   definition. 

*  Supra,  II.;  Block,  op.  cit.,  976. 


THE  DUTIES  OF  OFFICERS.  85 

Further  it  is  dependent  for  its  enforcement  almost  en- 
tirely upon  the  existence  and  the  exercise  of  a  disci- 
plinary power.  Some  states,  however,  recognize  it 
explicitly  in  their  law.  Thus  the  civil-service  law  of 
the  United  States  national  government  provides  that 
no  person  shall  be  retained  in  the  service  who  habit- 
ually indulges  to  excess  in  intoxicating  liquors,  and 
most  of  the  official  codes  in  Germany  require  from  offi- 
cers orderly  conduct — conduct  such  as  will  command 
the  respect  of  the  citizens.  ^  This  provision,  although 
it  is  formulated  somewhat  vaguely  in  the  law  as  it  must 
necessarily  be,  really  means  something,  on  account  of 
the  strong  esprit  du  corps  among  the  officers  of  the 
German  civil  service.  It  is,  we  may  say,  somewhat 
equivalent  to  the  duty  of  an  officer  in  the  military 
service  to  conduct  himself  in  a  manner  becoming  an 
officer  and  a  gentleman.  This  duty  of  orderly  conduct 
has  of  late  years  come  in  the  United  States  and  England 
to  mean  that  an  officer  must  not  be  guilty  of  offensive 
partisanship  against  the  ruling  party  in  the  executive 
office  or  of  taking  an  active  part  in  political  contests.  ^ 
A  good  example  of  what  the  duty  of  courteous  be- 
havior to  the  public  means  and  how  it  m^y  be  enforced 
may  be  found  in  an  incident  which  occurred  at  Wash- 
ington not  many  years  ago.  An  individual  who  had 
business  with  one  of  the  departments  was  treated  with 
incivility  by  one  of  the  clerks.  Complaint  was  made 
to  the  superior  officer  and  the  clerk  was  dismissed  from 
the  service  by  the  secretary  with  the  remark  that  every 
man  "  who  had  business  with  the  treasury  was  entitled 
to  civil  treatment,  and  that  no  employee  who  was  un- 

^  Schulze,  op.  Hi.,  I.,  323. 
*  See  Pol.Sci.  Qu.,  III.,  252  :  Todd,  op,  cit.,  I.,  631. 


S6  THE  LAW  OF  OFFICERS. 

able  to  remember  that  he  was  a  servant  of  the  people 
and  bound  to  be  courteous  to  those  whom  he  served 
need  expect  to  be  retained."  ^ 

///. — Responsibility  of  officers  for  violation  of  duty. 

The  violation  of  the  duties  which  have  been  so 
briefly  outlined  may  result  in  a  three-fold  responsibil- 
ity. In  the  first  place  if  an  individual  is  damaged  by 
the  violation  of  his  duty  by  an  official,  the  official  may 
in  some  cases  be  held  liable  to  reimburse  the  injured 
individual  to  the  extent  of  the  damage  which  he  has 
suffered.  '^  In  the  second  place,  if  the  law  has  attached 
a  criminal  penalty  to  the  violation  of  official  duty  the 
officer  may  be  punished  criminally.^  Finally  if  the 
administration  is  at  all  centralized  and  if  the  disciplin- 
ary power  is  strong,  as  it  generally  is  in  all  centralized 
systems  of  administration,  the  violation  of  official  duty 
will  lead  to  an  administrative  responsibility.  In  some 
cases,  as,  e,  g.,  in  the  United  States,  the  disciplinary 
power,  where  it  exists,  consists  for  the  most  part  of 
the  power  of  removal.  Where  this  is  unconditional  it 
would  seem  that  the  power  to  inflict  lighter  disciplin- 
ary penalties  than  removal  would  practically  be  de- 
rived from  it  as  the  oflPending  officer  would  prefer  to 
submit,  for  example,  to  the  imposition  of  a  fine  rather 
than  lose  his  place  altogether.  A  disciplinary  power 
may,  however,  exist  where  there  is  no  absolute 
power  of  removal  or  where  the  power  of  removal  is 
conditioned  upon  the  finding  of  some  cause  when  the 
decision  of  the  disciplinary  power  as  to  what  is  cause 

'  See  New  York  Times,  Nov.  24,  1885. 

'  See  for  a  further  development  of  this  subject  infra^  II.,  p.  163. 

*See  infra,  II.,  p.  179. 


THE  DUTIES  OF  OFFICERS,  87 

is  generally  reviewable  by  the  courts.  ^  For  the  power 
may  be  given  to  a  disciplinary  authority  to  impose 
fines,  to  decree  the  loss  of  promotion,  where  that  is 
provided  as  a  claim  in  the  nature  of  a  right,  to  degrade 
the  officer  by  placing  him  in  a  lower  rank  than  that 
which  he  occupies  at  the  time  he  violates  his  duty,  to 
suspend  him  from  the  service  and  even  in  extreme  cases 
to  order  his  arrest.  This  sort  of  disciplinary  power  is 
more  extended  in  Germany  than  elsewhere  because  of 
the  fact  that  the  power  of  removal  is  not  generally  an 
absolute  one.^  Although  such  a  disciplinary  power 
does  not  as  a  rule  exist  in  the  American  administrative 
system,  still  we  do  find  instances  of  it  in  the  case  of 
the  purely  professional  services  which  have  been  estab- 
lished in  some  of  the  cities,  as,  e,  ^.,  the  fire  and  police 
forces.  Thus  section  272  of  the  present  New  York 
charter  ^  provides  that  the  board  of  police  "  shall  have 
power,  in  its  discretion,  on  conviction  of  a  member  of 
the  police  force  of  any  legal  offence  or  neglect  of  duty, 
or  violation  of  the  rules,  or  neglect  or  disobedience  of 
orders,  or  absence  without  leave,  or  any  conduct  inju- 
rious to  the  public  peace  or  welfare,  or  immoral  con- 
duct, or  conduct  unbecoming  an  officer,  or  other  breach 
of  discipline,  to  punish  the  offending  party  by  repri- 
mand, forfeiting  and  withholding  pay  for  a  specified 
time,"  not  exceeding  thirty  days,  or  dismissal  from 
the  force. 


'  See  People  v.  Board  of  Police,  72  N.  Y.,  415  ;  State  v.  St.  Louis,  90  Mo., 
19  ;  Stockwell  v.  Township  Board,  22  Mich. ,  341  ;  see  also  Kennard  v.  Louis- 
iana, 92  U.  S.,  480. 

^  See  Stengel,  Worterbuch,  etc  I.,  270,  sub  verba  Disciplin ;  see  also  for 
France  where  the  power  of  removal  is  almost  practically  unlimited.  Block,  op, 
cit.,  980  et  seq. 

»  N.  Y.  L.  1882,  c.  410. 


88  THE  LAW  OF  OFFICERS. 

Each  of  these  three  kinds  of  responsibility,  i.  e,,  the 
+^  civil,  criminal,  and  administrative,  reinforces  and  sup- 
plements the  others.  Therefore,  as  might  be  expected, 
the  extent  of  each  kind  of  responsibility  is  not  the 
same  in  different  states.  Where  the  disciplinary  power 
is  small,  the  criminal  responsibility  is  very  large,  as  is 
the  case  in  the  United  States.  Where  the  civil  respon- 
sibility is  small,  as  is  also  the  case  in  the  United  States 
compared  with  some  of  the  other  countries,  again  we 
find  a  large  criminal  responsibility.  Finally  if  the 
administrative  responsibility  is  extensive  it  may  be 
unnecessary  to  develop  the  other  kinds  of  responsi- 
bility to  any  great  extent.  No  hasty  judgment  should 
be  drawn  regarding  the  responsibility  of  officers  in 
any  one  country  from  a  consideration  of  only  one  of 
these  various  kinds  of  responsibility  as  all  reinforce 
and  supplement  each  other. 


CHAPTER  VI. 

TERMINATION   OF   THE    OFFICIAL   RELATION. 

The  official  relation  is  terminated  in  various  ways. 
The  first  to  be  mentioned  is  by  death.  This  is  so 
simple  that  it  hardly  needs  any  discussion.  All  that 
need  be  said  in  regard  to  it  is  that  an  office  held  by 
several  is  not  terminated  or  made  vacant  by  the  death 
of  one  of  the  incumbents  ^ ;  that  in  some  cases  the 
widow  or  the  family  of  the  deceased  officer  has  a 
claim  to  a  pcDsion,  and  that  the  estate  of  the  deceased 
officer  may  be  made  responsible  for  claimsi  against  it 
held  by  the  government.  The  official  relation  is  thus 
not  in  all  cases  absolutely  terminated  by  the  death  of 
the  incumbent  of  the  office.  A  more  important  way 
of  terminating  the  official  relation  is  by  the  expiration 
of  the  term  of  office. 

L- — Expiration  of  the  term. 

The  general  rule  would  seem  to  be  that  the  expira- 
tion of  the  term  of  the  office  causes  the  official  relation 
to  cease  so  far  as  the  future  is  concerned.  The  officer 
has,  after  the  expiration  of  his  term,  no  duties  and  no 
authority  to  act,  except  to  complete  unfinished  busi- 
ness and  except  in  so  far  as  the  principles  of  law  with 
regard  to  officers  de  facto  may  come  in  to  modify  this 

*  People  V.  Palmer,  52  N.  Y.,  84. 
89 


9o  THE  LAW  OF  OFFICERS. 

rule.^  But  in  order  to  overcome  the  inconveniences  of 
such  a  rule  it  is  often  provided  that  an  officer  shall 
hold  over  until  his  successor  enters  upon  the  perform- 
ance of  his  duties.  Where  such  a  provision  exists  it 
is  held  that,  so  far  as  this  is  necessary  to  the  protection 
of  the  public,  the  officer  will  be  deemed  to  be  in  office 
even  if  his  resignation  has  been  accepted.^ 

In  the  United  States  the  subject  of  the  term  of  office 
has  become  very  impoii;ant  on  account  of  the  practice 
of  fixing  a  specified  term  of  office  for  almost  every 
governmental  office.  The  constitution  of  the  United 
States,  and  the  first  constitution  of  New  York  provided 
a  fixed  term  for  very  few  offices.  The  first  change  in 
this  system  of  indefinite  terms  of  offices  for  officers  of 
the  national  government  was  made  by  the  law  of  1820.^ 
This  statute  provided  that  all  district-attorneys,  col- 
lectors of  the  customs,  naval  officers  and  surveyors  of 
the  customs  and  certain  other  officers  should  be  ap- 
pointed for  a  term  of  four  years,  but  should  be  remov- 
able at  the  pleasure  of  the  removing  power.  The  act 
was  retroactive  in  effect.  It  will  be  noticed  from  an 
examination  of  the  act  and  debates  of  Congress  when 
the  proposition  was  made  several  years  later  to  repeal 
it,  that  the  alleged  motive  in  passing  it  was  to  cause 
the  different  disbursing  officers  of  the  government  to 
feel  a  stronger  sense  of  responsibility,  as  the  formalities 
of  a  removal  would  not  have  to  be  gone  through  with 
in  case  they  were  not  up  in  their  accounts.*     It  is  said, 

*  People  V.  Tieman,  30  Barbour,  N.  Y.,   193  ;  Newman  v.   Beckwith,  61 
N.  Y.,  205  ;  Lawrence  v.  Rice,  12  Mete,  Mass.,  527,  533. 

'  Badger  v.  U.  S.,  93  U.  S.,  599,  603  :  Jones  v.  Jefferson,  66  Tex.,  576. 

•  L.,  May  15,  1820. 

^  See  speech  of  Mr.  Webster  in  the  Senate,  Benton's  Debates^  XII.,  599, 
605. 


TERMINA  TION  OF  THE  OFFICIAL  RELA  TION.      91 

however,  that  the  real  motive  in  passing  the  act  was  a 
partisan  political  one ;  and  that  several  party  leadei^ 
thought  the  system  of  arbitrary  removals  from  office 
which  had  unfortunately  been  introduced  into  New 
York  might  be  introduced  into  the  national  adminis- 
trative system  much  more  easily  if  such  a  law  as 
that  of  1820  were  adopted/  But  whatever  was  the 
motive  of  Congress  in  passing  this  act,  which  at  the 
time  it  was  passed  attracted  little  attention,  it  soon  be- 
came apparent  that  its  effect  was  the  practical  removal 
of  many  officers  regardless  of  their  conduct  in  office 
who  happened  not  to  be  in  sympathy  with  the  domi- 
nant political  party.^  The  introduction  of  the  princi- 
ple of  the  removal  of  officers  for  political  reasons  was 
believed  by  some  of  the  best  American  statesmen  to 
be  so  disastrous  that  repeated  attempts  were  made  to 
repeal  the  act  of  1820,  one  a  few  years  after  its  passage 
in  1825  and  one  in  1836,  when  many  prominent  men  in 
the  Senate  voted  for  its  repeal.  These  attempts  at 
repeal  all  failed  of  success ;  and  in  the  meantime  the 
people  had  become  so  accustomed  to  seeing  officers, 
whose  term  of  office  was  limited  by  the  law,  fail  of  re- 
appointment and  replaced  at  the  expiration  of  their 
term  by  persons  in  sympathy  with  the  party  in  power 
that  this  principle  of  "  rotation  in  office,"  as  it  began  to 
be  called,  was  regarded  as  one  of  the  essential  features 
of  the  American  administrative  system.^  The  prin- 
ciple was  finally  extended  to  almost  all  the  offices  in 
the  national  government  and  from  thence  into  the  ad- 
ministrative systems  of  most  of  the  commonwealths,  so 

*  See  Publications  of  the  Civil-Service  Reform  Association,  No.  5,  p.  24  ;  F, 
W.  Whitridge,  on  "  Rotation  in  Office  "  in  the  Pol.  Sci.  Qu.,  IV.,  284. 
»  Ibid.,  286.  3  See  Benton's  Debates,  XII.,  591. 


92  THE  LA  W  OF  OFFICERS. 

that  now  the  term  of  almost  every  administrative  office 
in  the  United  States  is  fixed  by  law  at  a  certain  num- 
ber of  years,  generally  four.  Further  it  is  generally 
expected  that  a  new  administration  will  not  reappoint 
the  old  incumbents/  The  effect  of  these  term  of 
office  laws,  as  they  are  called,  has  thus  been  almost 
altogether  bad,  and  the  alleged  motive  for  their  adop- 
tion is  seen  to  be  based  on  no  reasonable  grounds  when 
it  is  remembered  that  the  disciplinary  power  of  the 
government  at  the  time  when  they  were  adopted  was, 
as  it  is  now,  practically  absolute.  The  evils  of  the 
laws  have  been  somewhat  alleviated  so  far  as  the 
classified  service  is  concerned  by  the  introduction  of 
competitive  examinations,  since  now  the  appointing 
power  may  not  appoint  to  positions  in  the  classified 
service  exactly  the  persons  it  may  wish  to.  But  on 
account  of  the  relative  smallness  of  the  classified  ser- 
vice the  evils  of  fixed  terms  of  office  are  still  very  great 
and  the  attempt  is  now  being  made  to  secure  the  repeal 
of  the  laws  which  introduced  the  principle  into  the 
American  system. 

//. — Resignation. 

The  official  relation  may  be  terminated  by  resigna- 
tion on  the  part  of  the  incumbent.  While  all  the  cases 
agree  upon  this  principle  there  seems  to  be  a  difference 
of  opinion  as  to  the  necessity  of  the  acceptance  by  the 
proper  person  of  the  resignation.  Some  of  the  cases, 
basing  themselves  on  the  old  English  rule  that  govern- 
mental offices  were  obligatory,  and  seeing  that  the 
recognition  of  an  absolute  right  in  the  officer  to  resign 

*  As  to  the  number  of  offices  whose  incumbents  are  changed  by  an  incoming 
administration,  see  F.  P.  Powers  on  "  The  Reform  in  the  Federal  Service"  in 
Pol.  Set.  Qu.,  III..  267,  276. 


TERMINA  TION  OF  THE  OFFICIAL  RELA  TION. 


93 


regardless  of  the  wishes  of  his  superiors  would  result 
in  the  destruction  of  the  obligation  of  office,  have  held 
that  a  resignation  is  not  effective  until  it  has  been  ac- 
cepted. ^  Other  cases  have  added  to  the  old  English 
rule  the  corollary  that  resignation  has  at  common  law 
absolutely  no  effect,  that  unless  the  statute  gives  the 
power  to  some  one  to  accept  a  resignation,  acceptance 
of  a  resignation  even  by  an  authority  which  is  the 
recognized  superior  of  the  officer  resigning  does  not 
have  the  effect  of  terminating  the  official  relation.' 
Other  cases,  losing  sight  of  the  fact  that  at  common 
law  acceptance  of  a  long  series  of  offices  was  obliga- 
tory, have  laid  down  the  general  rule  that  acceptance 
of  a  resignation  from  officers  is  never  necessary.'  If, 
however,  the  general  rules  laid  down  in  these  cases  are 
not  considered  but  only  the  actual  decisions  rendered, 
it  will  be  found  that  the  contradiction  is  not  really  so 
great  as  it  seems.  For  almost  all  the  cases  holding 
that  acceptance  of  the  resignation  is  necessary  were 
decided  with  regard  to  local  offices  which  were 
obligatory  offices  in  the  self-government  system  of  ad- 
ministration, while  those  cases  which  have  held  the 
acceptance  to  be  unnecessary  have  been  decided  with 
regard  to  offices  of  the  general  government  to  which 
the  common  law  rule  is  not  regarded  as  applying  and 
which  take  up  most  if  not  all  the  time  and  attention 
of  the  incumbent — are  therefore  more  or  less  profes- 

*  Van  Orsdell  v.  Hazard,  3  Hill,  N.  Y.,  243  ;  Hoke  v.  Henderson,  4  Dever- 
eux,  N.  C.  L.,  I.,  25. 

'  See  State  v.  Ferguson,  31  N.  J.  L.,  107  ;  but  see  Van  Orsdell  v.  Hazard, 
3  Hill,  243,  which  claims  for  the  appointing  power  the  right  to  accept  a 
resignation. 

2  See  People  v.  Porter,  6  Cal.,  26  ;  State  v.  Clark,  3  Nev.,  519;  Olmsted  v. 
Dennis,  77  N.  Y.,  378  ;  Wright  v.  U.  S.,  i.  McLean,  509,  512  ;  14  Opinions 
Atty.  General,  259. 


94  THE  LA  W  OF  OFFICERS. 

sional  in  character.  *  In  all  cases  resignation  consists 
in  the  intention  to  relinquish  the  office  accompanied  by 
an  absolute  relinquishment.  ^  Provided  these  facts  are 
present  it  makes  no  difference  how  the  resignation  i» 
made.  It  may  be  and  usually  is  in  writing,  but  it  also 
may  be  made  by  parol.  ^  Where  the  acceptance  of  the 
resignation  is  not  regarded  as  necessary  it  has  been 
held  that  the  resignation  is  complete  as  soon  as  it  is  out 
of  the  power  of  the  officer  resigning  to  recall  it.  Thus 
the  resignation  has  been  held  to  be  complete  after  it 
has  been  mailed.  *  Where,  however,  acceptance  of  the 
resignation  is  necessary  the  resignation  is  not  complete 
until  it  has  been  received  by  the  authority  that  has  the 
right  to  accept  it  and  may  be  withdrawn  by  the  officer 
resigning  at  any  time  with  the  consent  of  the  officer 
who  has  the  power  to  accept  it.  ^  Finally  where  it 
is  provided  that  an  officer  shall  hold  over  until  his  suc- 
cessor enters  upon  the  duties  of  the  office  it  has  been 
held  that  resignation  has  no  effect,  even  if  it  has  been 
accepted,  as  the  purpose  of  the  law  is  to  prevent  an 
official  interregnum.  ^  As  there  is  no  formal  way  pre- 
scribed for  the  making  of  a  resignation  so  there  is  no 
formal  method  prescribed  for  its  acceptance.  Thus 
the  filing  without  objection  of  the  resignation  in  the 
proper  office  has  been  held  to  be  an  acceptance,  ^  so  also 
the  appointment  of  a  successor.  ^     The  resignation  may 

*  See  Edwards  v.  U.  S.,  103  U.  S.,  471. 

*  Biddle  V.  Willard,  10  Ind.,  62,  but  see  Blake  v.   U.   S.,   14,  Ct.  CI.,  462^ 
holding  that  the  resignation  of  an  officer  while  temporarily  insane  is  valid. 

*  Barbour  v.  U.  S.,  17  Ct.  CI.,  149. 

*  State  V.  Clarke,  3Nev,,  519. 

^  Biddle  v.  Willard,  10  Ind.,  62  ;  but  see  State  v.  Hauss,  43  Ind.,  105. 
"  Badger  v.  U.  S.,  93  U.  S.,  599  ;  Edwards  v.  U.  S.,  103  U.  S.,  475  I  Thomp« 
son  V.  U.  S.,  103  U.  S.,  480. 

*•  Pace  V.  People,  50  111.,  432  ;  see  also  Gates  v.  Delaware  Co.,  I2  Iowa,  432.. 
®  Edwards  v.  U.  S.,  103  U.  S.,  471. 


TERM  IN  A  TION  OF  THE  OFFICIAL  RELA  TION.      95 

never,  however,  be  retrospective  since  that  would  per- 
mit an  officer  to  escape  official  responsibilities.  ^ 

In  France  and  Germany,  while  the  general  right  to 
resign  from  all  offices  not  obligatory  in  character  is 
recognized  as  in  England  and  the  United  States,  still 
certain  limitations  on  the  exercise  of  the  right  are  to 
be  found  in  the  laws.  Thus  in  France  the  penal  code* 
punishes  all  officers  who  by  a  preconcerted  decision 
resign  in  order  to  prevent  or  suspend  the  action  of 
some  public  service;  while  in  Germany  the  officer 
about  to  resign  must  give  three  months'  notice  of  his 
intention,  and  the  resignation  is  not  effectual  until  he 
has  finished  his  work  and,  in  case  he  has  public 
property  in  his  charge,  until  his  accounts  have  been 
fully  settled ;  and  the  resignation  must  be  accepted.^ 

///. — Loss  of  qualifications. 

Loss  of  qualifications  generally  entails  loss  of  the 
office.  Thus  the  attainment  of  an  age  which  by  law 
unfits  for  the  office  will  terminate  the  official  relation 
except  in  so  far  as  the  doctrine  of  officers  de  facto 
comes  in  to  modify  the  rule.  Also  conviction  for 
crime,  which  results  in  the  loss  of  the  qualification  of 
good  character,  will  terminate  the  official  relation.* 
One  of  the  most  common  methods  of  losing  the  neces- 
sary qualifications  is  the  acceptance  of  an  incompatible 
office.  This  is  regarded  as,  ipso  facto,  a  vacation  of  the 
first  office  even  if  the  second  office  is  inferior  to  the 
first  5;  and  even  though  the  title  to  the  second  office  is 

'  I.  First  Comptroller's  Decisions,  325.  '  Article  126. 

•  Schulze,  op.  cit.,  I.,  341  ;  for  France  see  Block,  Dictionnaire,  etc.,  986. 

*  E.  g.,  see  N.  Y.  L.  1892,  c.  681,  sec.  20. 

'  Milward  v.  Thatcher,  2  T.  R.,  81  ;  I.  First  Comptroller's  Decisions,  324 
and  cases  cited  ;  Mechem,  op.  cit.,  sec.  420  and  cases  cited. 


96  THE  LAW  OF  OFFICERS, 

defective  the  first  office  may  not  be  claimed  if  in  the 
meantime  it  has  been  filled.^  The  only  exception  to 
this  rule  is  that  where  the  incumbent  of  the  first  office 
has  not  the  right  to  resign  or  where  his  resignation  is 
not  complete,  as,  e.  g,,  it  has  not  been  accepted  when 
acceptance  is  necessary.  Here  the  acceptance  of  the 
second  office  has  no  effect.^  The  incompatibility  which 
is  necessary  in  order  to  vacate  the  office  may  result 
from  common  law  or  from  statute.  The  common  law 
holds  that  an  "  inconsistency  in  functions  of  the  two 
offices  and  not  the  mere  lack  of  time  or  inability 
properly  to  perform  the  duties  of  the  two  offices  is  an 
incompatibility."  ^  Sometimes  the  statutes  merely  de- 
clare that  two  offices  are  incompatible  when  the  rule 
as  stated  would  apply;  sometimes  they  declare  that 
no  person  shall  hold  at  the  same  time  two  lucrative 
offices.  Where  the  two  offices  are  found  in  the  same 
government,  as,  e.  ^.,  in  the  commonwealth,  or  where 
the  second  office  is  held  in  another  government  over 
which  the  government  laying  down  the  rule  has  no 
jurisdiction,  then  the  rule  is  that  the  second  office  is  to 
be  deemed  an  incompatible  office,  and  that  therefore 
the  first  office  is  vacated.* 

But  these  incompatible  offices  must  be  clearly  dis- 
tinguished from  forbidden  offices.  Here  the  rule  is 
not  that  the  first  office  is  vacated  but  that  it  is  ab- 
solutely impossible  for  a  person  to  accept  an  office  for 
which  he  is  made  ineligible  by  the  fact  of  his  holding 

»  Rex. -v.  Hughes,  5  B.  and  C,  886. 

'  Rex.  V.  Patterson,  4  B.  and  Ad.,  9. 

'  See  People  v.  Green,  58  N.  Y.,  295  ;  Mechem,  op.  cii.,  sec.  423  and  cases 
cited. 

^  See  Darley  v.  State,  8  Blackford,  Ind.,  329  ;  Dickson  v.  People,  17  111., 
191  ;  State  v.  Buttz,  9  S.  C,  156  ;  Lucas  v.  Shepherd,  r6  Ind.,  368  ;  State  v. 
Newhouse,  29  La.  Ann.,  824. 


TERMINA  TION  OF  THE  OFFICIAL  RELA  TION,      97 

another  office/  When  the  law  provides  that  no  person 
shall  hold  two  lucrative  offices  and  a  person  holding 
an  office  over  which  the  government  laying  down  the 
prohibition  has  no  control  (as,  e,  g.y  a  United  States 
post  office),  accepts  an  office  over  which  such  govern- 
ment has  control  (as,  e.  g,,  a  commonwealth  office), 
then  the  second  office  is  regarded  as  a  forbidden  office. 
The  first  one  is  therefore  not  vacated  as  in  the  case  of 
an  incompatible  office,  but  the  individual  is  deemed 
ineligible  to  the  second  office.^ 

Finally  persistent  refusal  to  perform  the  duties  of 
the  office  is  regarded  as  an  abandonment  of  the  office.^ 
All  cases  of  resignation,  disqualification,  or  abandon- 
ment of  office  are  decided  finally  by  the  courts.* 

IV. — Removal  from  office. 

The  power  may  be  given  to  an  administrative  officer 
to  remove  other  officers  whatever  be  the  method  of 
forming  the  official  relation.  Thus  a  power  may  be 
given  to  the  chief  executive  to  remove  officers  who 
obtained  their  offices  by  popular  election.  Take,  e,  g.y 
the  case  of  the  New  York  sheriff  and  the  French 
mayor.  Both  are  elected  directly  or  indirectly  by  the 
people  and  yet  both  as  a  result  of  statute  may  be  re- 
moved by  the  chief  executive.  Where,  however,  the 
tenure  of  an  office  is  by  election,  or  where  the  term  of 
an  officer  is  fixed  by  law  for  a  certain  period,  it  would 
seem  to  be  the  law  in  the  United  States  that  in  order 
that  the  power  of  removal  may  be  possessed  by  any 

*  People  V.  Clute,  50  N.  Y.,  451  ;  see  also  Searcy  v.  Grow,  15  Cal.,  117. 

*  State  V.  De  Gress,  53  Tex.,  387  ;  People  v.  Leonard,  73  Cal.,  230. 
'  Mechem,  op.  cU.,  sec.  435  and  cases  cited. 

*  Van  Orsdell  v.  Hazard,  3  Hill,  N.  Y.,   243  ;  Mechem,  op.  cit.,   sees.  435  r/ 
seq.,  478  and  cases  cited. 

VOL.  II— 7 


98  THE  LAW  OF  OFFICERS. 

other  administrative  officer,  it  must  have  been  granted 
by  some  statute.  If,  however,  an  officer  is  appointed 
by  a  superior  officer  it  would  seem  to  be  the  rule, 
in  the  absence  of  any  statute  fixing  the  term  or  tenure, 
that  the  power  of  removal  is  incident  to  the  power  of 
appointment.^  It  is  quite  common  in  the  United  States 
for  the  legislature  to  confer  upon  the  chief  executive 
officer  the  power  of  removing  officers  whom  he  has  not 
the  power  to  appoint.^  The  power  conferred  in  such  cases 
may  be  absolute  or  it  may  be  conditional.  The  power 
of  removal  when  incident  to  the  power  of  appointment 
is  usually  absolute.  It  is  therefore  absolute  in  the 
United  States  national  government;  in  the  common- 
wealths it  is  also  usually  absolute  for  the  subordinates 
in  the  departmental  services,  and  also  for  the  clerical 
services  in  the  localities.  It  is  also  usually  absolute  in 
both  England  and  France,  both  in  the  central  and  the 
local  services.  Where  conditions  are  imposed,  they 
consist  sometimes  in  the  necessity  of  obtaining  the  con- 
sent of  an  executive  council.  This  is  frequently  true 
of  the  power  of  the  governor  to  remove  the  important 
"  state  officers."  ^  In  other  cases,  which  are  veiy  fre- 
quent in  the  United  States  commonwealths,  the  condi- 
tion consists  in  the  fact  that  the  removal  may  be  for 
cause  only.  Where  the  cause  is  not  particularly  speci- 
fied, the  removing  officer  is  generally  to  decide  what 
is  cause  sufficient  to  justify  his  action,*  subject, 
however,  to  the  review  of  the  courts.^  These  have 
held  that  the  cause  sufficient  to  justify  a  removal 
for    cause,    must  be  some  dereliction  of   duty  or  in- 

'  Ex  parte  Hennen,  13  Peters,  U.  S.,  230,  239  ;  People  ex  rel.  Sims  v.  Fire 
Commissioners,  73  N.  Y.,  437  ;  Mechem,  op.  cit.,  sec.  445.        ^  Ibid.,  sec.  447. 
2  Supra,  I.,  pp.  103,  104.  ^  See  Dubuc  v.  Voss,  19  La.  Ann.,  210. 

^  Matter  of  Nichols,  6  Abbott's  New  Cases,  N.  Y.,  494. 


TERMINA  TION  OF  THE  OFFICIAL  RELA  TION. 


99 


capacity  or  delinquency  and  that  the  mere  fact  that 
another  person  might  perform  the  duties  of  the  office 
better  than  the  incumbent  is  not  sufficient  cause.^ 
Sometimes  the  statutes  granting  the  power  of  removal 
or  fixing  the  tenure  of  an  officer  specify  distinctly  the 
causes  for  removal.  If  such  is  the  case  the  removing 
officer  may  remove  only  for  the  causes  specified  in  the 
law.^  Ordinarily  the  causes  which  are  thus  specified 
are  official  misconduct,  mal-administration  in  office, 
breach  of  good  behavior,  wilful  neglect  of  duty, 
extortion,  and  habitual  drunnkeness.  The  legislature 
may  in  the  absence  of  constitutional  provision  deter- 
mine what  shall  be  sufficient  to  justify  the  exercise  of 
the  power  of  removal;  but  w^here  the  constitution 
provides  that  certain  causes  will  justify  the  exercise  of 
the  power,  the  legislature  may  not  add  new  causes.^ 
Where  the  law  provides  for  removal  for  official  mis- 
conduct it  is  necessary  to  separate  the  character  of  the 
officer  from  the  character  of  the  man  who  holds  the 
office.  That  is,  misconduct  must  be  official  in  charac- 
ter.'*  In  all  cases  where  the  power  of  removal  is  con- 
ditioned upon  the  existence  of  cause  it  is  necessary  for 
the  removing  officer  to  give  the  officer  to  be  removed 
an  opportunity  to  be  heard  in  his  defence.^  But  where 
the  removing  officer  has  the  arbitrary  power  of  removal 
this  is  not  necessary,  though  it  may  be  made  so  by 
statute.^     As  a  general  thing  the  power  of  removal 

*  People  V.  Fire  Commissioners,  73  N.  Y.,  437. 

*  Mechem,  op.  cii.,  sec.  450  with  cases  cited. 

3  Mechem,  op.  cit.,  sec.  457  ;  Commonwealth  v.  Williams,  79  K*y,  42. 

^  Ibid.  ;    Commonwealth  V.  Hardin.  Barry,  K'y.,  160. 

^  Dullam  V.  Willson,  53  Mich.,  392  ;  see  Foster  v.  Kansas,  112  U.  S.,  201 ; 
Kennard  v.  Louisiana,  92  U.  S.,  480  ;  Mechem,  op.  cit.,  sec.  454,  and  cases 
cited.  "  Ex  parte  Hennen,  13  Peters,  230  ;  N.  Y.  Const.,  V.,  sec.  4. 


loo  THE  LAW  OF  OFFICERS. 

does  not  include  the  power  to  suspend/  though  it  may 
be  expressly  so  provided  by  statute.*^  The  removal 
may  be  express  or  implied.  Where  the  power  is  abso- 
lute the  appointment  of  another  person  to  an  office 
with  the  intention  of  superseding  the  incumbent  is 
regarded  as  a  removal.^  But  it  is  said  that  the  removal 
to  be  effectual  must  be  brought  to  the  notice  of  the 
officer  removed.* 

In  one  country,  viz,^  Germany,  the  rule  seems  to  be 
that  no  officer  possesses  the  arbitrary  power  of  removal. 
Nearly  all  the  officers  are  appointed  for  life  or  for 
fixed  terms,  and  can  be  removed  only  as  the  result  of 
a  conviction  of  crime  or  of  the  decision  of  a  disci- 
plinary tribunal.  The  proceedings  before  such  disci- 
plinary tribunals  have  many  of  the  characteristics  of  a 
criminal  trial.5 

V, — Legislative  action. 

It  has  already  been  pointed  out  that  an  office  is  not 
a  contract.  It  is  therefore  perfectly  within  the  power 
of  the  legislature,  in  the  absence  of  some  special  con- 
stitutional limitation,  to  terminate  the  official  relation 
either  by  abolishing  the  office,  shortening  the  term,  de- 
claring the  office  to  be  vacant,  or  by  transferring  the 
duties  of  one  office  to  another,  or  to  increase  its  duties.^ 

*  Gregory  v.  New  York,  113  N.  Y.,  416. 

'  See  New  York  Const.,  V.,  sees.  3  and  7  ;  N.  Y.  L.  1875,  c.  39. 

*  People  V.  Carrique,  2  Hill,  N.  Y.,  93  ;  Bowerback  v.  Morris,  Wallace's 
Reports,  C.  C,  119  ;  Stadler  v.  Detroit,  13  Mich.,  346. 

*  Commonwealth  v.  Slifer,  25  Pa.  St.,  23. 

"^  See  Schulze,  op.  cit.^  I.,  342 ;  Stengel,  Worterbuch,  etc.,  sub  verbo^ 
Beamte. 

8 State  V.  Douglas,  26  Wis.,  428  ;  Butler  v.  Pa.,  10  How,  U.  S.,  402  ;  Atty.- 
Gen.  V.  Squires,  14  Cal.,  13  ;  Bunting  v.  Gales,  77  N.  C,  283  ;  cf.  Mechem, 
op,  cii.,  sec.  465. 


TERMINA  TION  OF  THE  OFFICIAL  RELA  TION,     loi 

The  same  is  true  with  regard  to  municipal  offices.  The 
municipal  authority  having  the  power  to  create  offices 
has  the  right  to  abolish  them.^  Finally  the  legislature 
often  has  the  right  to  terminate  the  official  relation  by 
means  of  impeachment.^ 

*  Augusta  V.  Sweeny,  44  Ga.,  463  ;  Ford  v.  Corns.,  22  Pac  Rep.,  278. 
'  See  infra^  II.,  p.  296. 


BOOK  V. 

METHODS    AND    FORMS   OF   ADMINISTRA- 
TIVE  ACTION. 


CHAPTER  I. 

DISTINCTION   OF   THE   METHODS   FROM   THE   DIRECTIONS  OF 
ADMINISTRATIVE    ACTION. 

The  administration  lias  up  to  this  point  been  con- 
sidered at  rest.  Its  organization  both  at  the  centre 
and  in  the  localities,  the  relations  of  the  officers  and 
authorities  with  each  other,  and  the  rules  in  regard  to 
the  official  service  have  been  treated,  it  is  hoped,  with 
sufficient  fulness  to  give  an  adequate  idea  of  the  ad- 
ministrative machinery  and  the  character  of  the  official 
system.  It  now  becomes  necessary  to  consider  the 
methods  and  forms  of  the  action  for  the  purpose  of 
which  the  administrative  system  is  formed. 

Great  care  must  be  taken  to  distinguish  the  methods 
and  forms  of  administrative  action  from  its  directions, 
that  is,  the  various  services  which  the  administration 
may  attend  to  in  the  interest  of  the  community.  While 
these  latter  vary  greatly  in  different  states,  while  in 
some  the  directions  of  administrative  action  may  be 

I02 


METHODS  OF  ACTION.  103 

much  more  numerous  than  in  others,  the  forms  and 
methods  of  administrative  action  must  be  everywhere 
essentially  the  same.  Thus  the  administration  may  or 
may  not  attend  to  the  telegraphic  or  railway  services 
of  the  country.  Whether  it  does  or  does  not,  it  must 
in  all  cases  make  some  contracts,  if  the  government  is  to 
be  conducted  at  all.  Again  the  administration  may  or 
may  not  exercise  a  supervision  over  the  press.  Whether 
it  does  or  does  not,  it  must  in  all  cases  exercise  a  cer- 
tain amount  of  police  power. 

The  forms  and  methods  of  administrative  action, 
being  everywhere  essentially  the  same,  may  be  classi- 
fied essentially  in  the  same  categories.  We  may  go  a 
step  further.  We  may,  on  account  of  the  uniformity  in 
the  civilization  which  lies  at  the  basis  of  all  state  forms 
existing  in  or  denved  from  western  Europe,  classify 
also  the  directions  of  administrative  action  in  essen- 
tially the  same  categories.  Thus  everywhere  we  find 
the  administration  acting  as  the  man  of  business  of 
society,  carrying  on  commercial  undertakings  too  vast 
to  be  well  managed  by  individual  or  corporate  effort, 
or  of  such  a  nature  as  to  produce  better  results  to  the 
community  under  governmental  than  under  private 
management.  In  some  states  this  kind  of  administra- 
tive action  is  much  more  important  and  extensive  than 
in  others,  but  everywhere  we  find  the  action  of  the 
administration,  to  an  extent  at  any  rate,  commercial  in 
character.  Again  we  find  the  administration  acting 
everywhere  as  the  delegate  of  the  sovereign  and  exer- 
cising powers  of  compulsion  over  those  persons  who 
are  in  obedience  to  the  state ;  here  also  we  find  in  some 
states  this  governmental  activity,  as  we  may  call  it, 
much  greater  than  in  others,  owing  to  the  difference  in 


I04  ADMINISTRATIVE  ACTION, 

the  ends  of  government  sought  after  in  different  states. 
Finally  everywhere  we  find  the  administration  acting 
directly  in  furtherance  of  the  welfare  of  individuals, 
but  neither  by  means  of  carrying  on  commercial  under- 
takings nor  by  means  of  the  exercise  of  governmental 
powers  ;  we  find  it,  for  example,  collecting  information, 
filing  and  authenticating  documents  and  records,  and 
issuing  patents  and  charters  of  incorporation.  But 
here  also  we  find  great  difference  in  the  extent  of  this 
sort  of  work  done  in  different  states.  We  may  say 
therefore  that  the  directions  of  administrative  action 
are  commercial,  governmental,  or  directly  in  further- 
ance of  the  public  welfare.  Any  detailed  treatment 
of  these  directions  of  administrative  action  would  re- 
sult in  the  attempt  to  treat  systematically  of  the  entire 
field  of  administrative  action — of  the  five  great  admin- 
istrative branches  which  have  already  been  distin- 
guished, viz.^  foreign,  military,  judicial,  financial,  and 
internal  affairs.  Such  a  treatment  will  not  be  under- 
taken here,  as  it  is  not  within  the  scope  of  the  present 
work,  which  must,  on  account  of  the  lack  of  space, 
be  confined  to  the  presentation  of  the  main  principles 
of  the  most  important  administrative  systems  of  the 
present  time.  Neither  is  it  necessary,  in  order  to  a 
correct  understanding  of  the  general  principles  of  the 
administrative  law,  to  treat  of  these  matters  any  further 
than  to  state  the  categories  in  which  they  may  be 
placed,  since  the  relations  of  the  individual  with  the 
administration  resulting  from  the  action  of  the  admin- 
istration will,  on  account  of  the  general  conformity  of 
the  purposes  of  modern  states,  be  essentially  the  same. 
But  while  these  great  fields  of  administrative 
activity    and    the    directions    of    administrative    ac- 


METHODS  OF  ACTION,  105 

tion  may  properly  be  left  for  a  work  more 
special  in  its  nature  tlian  the  present  one,  while 
a  general  idea  of  the  work  of  the  administra- 
tion is  obtained  when  it  is  seen  that  its  activity  is 
governmental,  commercial,  or  directly  in  furtherance 
of  the  public  weKare ;  a  somewhat  detailed  considera- 
tion of  the  forms  and  methods  of  administrative  action 
must  be  undertaken  here.  For  without  it  the  whole 
system  of  remedies  by  which  individuals  are  protected 
against  a  violation  by  the  administration  of  the  rights 
guaranteed  to  them  by  the  constitution  or  statutes  of 
the  countiy  cannot  be  understood.  Since  it  is  on  the 
efficiency  and  adequacy  of  these  remedies  that  the  real 
value  of  all  private  rights  depends,  the  importance  of  a 
clear  understanding  of  the  methods  of  administrative 
action  can  hardly  be  overestimated. 


CHAPTER  IL 

THE   EXPRESSION    OF   THE    WILL    OF   THE    STATE. 

The  methods  and  forms  of  the  action  of  the  adminis- 
tration are  largely  dependent  upon  the  character  of 
the  duties  which  the  administration  is  called  upon  to 
perform.  The  character  of  these  duties  is  in  turn  de- 
pendent upon  the  nature  of  the  rules  of  administrative 
law  which  the  administration  has  to  apply.  These 
rules  of  law  are  of  two  kinds.  They  either  contain  a 
complete  expression  of  the  will  of  the  state,  or  so  in- 
completely express  the  will  of  the  state  that  some 
further  action  is  necessary  in  order  that  this  will  may 
be  capable  of  execution. 

/. —  Unconditional  statutes. 
Those  rules  of  administrative  law  which  completely 
express  the  will  of  the  state  are  found  in  statutes, 
which  are  put  into  the  form  of  unconditional  commands 
to  the  people  to  do  or  to  refrain  from  doing  some  par- 
ticular thing  and  which  threaten  the  violation  of  their 
provisions  with  the  imposition  of  a  penalty  in  the 
nature  of  a  fine  or  of  imprisonment/  But  in  no 
ordinary  classification  of  the  law  would  they  be  called 
criminal  laws,  nor  would  they  generally  be  inserted  in 
the  penal  code.     Attention  has  already  been  directed* 

*  Cf.  Gneist,  Das  Englische  Verwaltungsrecht,  1884,  320  et  seq.  ;  Loening, 
o^,  cit.,  225  et  seq.  *  Supra,  I.,  p.  16. 

106 


EXPRESSION  OF  THE  WILL  OF  THE  STATE.      107 

to  the  fact  that  criminal  law  does  not  form  a  special 
portion  of  the  law  distinct  from  the  other  portions  of 
the  law  as  is  the  administrative  or  the  private  law,  but 
that  it  is  a  law  of  sanction  applied  to  well-defined 
branches  of  the  law  in  order  to  ensure  the  enforcement 
of  their  provisions.  But  while  those  penal  provisions 
which  are  intended  to  protect  from  invasion  the  rights 
of  the  person  and  property  are  generally  classed  to- 
gether in  the  penal  code,  the  penal  laws  which  are 
intended  to  ensure  the  enforcement  of  the  adminis- 
trative law  are  to  be  found  scattered  through  the 
statute  book,  generally  in  connection  with  that  portion 
of  the  administrative  law  which  they  are  intended  to 
protect.  These  statements  may  perhaps  be  made 
clearer  by  one  or  two  examples.  Take  the  customs 
administrative  law.  As  far  as  possible  the  provisions 
of  this  law  are  put  into  the  form  of  penal  provisions. 
The  customs  administrative  law  says  to  the  importer 
and  the  shipmaster  that  they  must  transact  their 
business  in  a  certain  way,  that  they  must  do  given 
things,  as  e,  g.  enter  their  ship  and  their  invoices  of 
merchandise  in  a  certain  way,  also  that  they  must  re- 
frain from  doing  certain  things,  as  e,  g.  that  they 
must  not  unload  their  ships  at  certain  times  of  the  day, 
and  then  it  threatens  them  with  punishment  if  they  do 
not  obey  its  provisions.  The  mere  fact  that  such  pro- 
visions of  administrative  law  have  penalties  attached 
to  their  violation  does  not  make  them  any  the  less  ad- 
ministrative in  character.^  The  legislature  has  by  this 
means  endeavored  to  ensure  that  the  business  of  import- 
ing merchandise  shall  be  transacted  in  a  certain  way, 
since,  if  it  is  transacted  in  this  way,  the  duties  imposed 

'  See  Taylor  et  al\.  U.  S.,  3  How.,  197,  210. 


io8  ADMINISTRATIVE  ACTION, 

upon  imported  merchandise  will  be  easily  collected. 
Again  in  a  great  many  cases,  which  form  together 
what  is  known  as  police  law,  the  legislature  has 
adopted  a  similar  method  to  protect  the  inhabitants  of 
the  state  from  the  happening  of  accidents.  Thus  in 
the  larger  cities  the  law  often  says  that  individuals 
must  build  their  houses  in  a  certain  way  in  order  to 
avoid  the  dangers  of  fire  and  ill-health  resulting  from 
careless  construction  and  unsanitary  arrangements.  In 
order  to  force  the  individual  to  build  his  house  in  the 
way  required  there  is  a  penalty  attached  to  the  viola- 
tion of  the  provisions  of  such  police  laws.  But  again 
we  would  hardly  insert  such  laws  in  the  penal  code  or 
class  them  as  a  part  of  the  criminal  law,  though  it  is 
often  the  case  that  such  police  laws  are  sanctioned  by 
the  penal  code,  L  e,  violations  of  them  are  misdemeanors.^ 
Another  example  of  such  rules  of  administrative  law 
completely  expressing  the  will  of  the  state  is  to  be 
found  in  those  rules  of  administrative  law  with  regard 
to  the  assessment  and  collection  of  a  long  series  of  in- 
direct taxes.  The  law,  as  in  the  case  of  the  customs 
administrative  law,  lays  down  the  way  in  which  all 
payers  of  indirect  taxes  shall  transact  their  business 
and  punishes  the  violation  of  its  provisions  with  a 
penalty.  For  if  the  business  of  the  payer  of  indirect 
taxes  is  transacted  in  the  way  provided  by  the  law, 
the  assessment  and  collection  of  the  taxes  are  easy 
matters.  Indeed  it  may  be  said  that  the  tax  assesses 
and  collects  itself  where  the  method  of  payment  by 
means  of  the  purchase  from  the  government  of  stamps, 
and  the  affixing  of  them  to  taxable  articles  is  adopted. 
These  are  only  a  few  examples  of  this  method  of  for- 

^  Cf.  Wharton,  Criminal  Law,  gth  Ed,,  I.,  23  and  28. 


EXPRESSION  OF  THE  WILL  OF  THE  STATE.     109 

mulating  the  rules  of  administrative  law.  Every 
country  strives  so  far  as  it  can  to  put  its  administrative 
law  into  the  form  of  absolute  unconditional  commands, 
since  no  rule  of  law  is  so  easy  of  enforcement  as  a  direct 
command  whose  violation  is  punishable.  There  is  little 
chance  of  conflict  between  the  administration  and  the 
individual  to  whom  the  law  is  to  be  applied,  since  in 
applying  this  class  of  the  rules  of  administrative  law 
the  action  of  the  administration  is  confined  to  hunting 
up  all  violations  of  them  and  to  seeing  that  the  penal- 
ties for  such  violations  are  enforced.  The  administra- 
tion has  little  or  no  discretion  to  exercise,  since  the 
will  of  the  state  has  been  completely  expressed  in  the 
law  and  since  therefore  the  administration  has  only  to 
execute  the  law. 

//. — Conditional  statutes. 

But  there  are  certain  duties  which  the  administra- 
tion is  called  upon  to  perform,  which  it  cannot  perform 
under  a  system  of  unconditional  commands.  No  legis- 
lature has  such  insight  or  so  extended  a  vision  as  to  be 
able  itself  to  regulate  all  the  details  in  the  administra- 
tive law  or  to  put  into  the  form  of  unconditional  com- 
mands, addressed  to  the  public  at  large,  rules  which 
will  in  all  cases  completely  or  even  adequately  express 
the  will  of  the  state.  All  it  can  do  is  to  express  that 
will  in  a  general  way.  It  enacts  a  series  of  general 
rules  of  administrative  law  which,  in  distinction  from 
the  absolute  unconditional  commands,  may  be  called 
relative  or  conditional  commands,  since  they  lay  down 
the  conditions  and  circumstances  in  which  it  vdll  be 
lawful  for  the  administration  to  act ;  and  the  action  of 
the  administration  in  applying  these  conditional  rules 


no  ADMINISTRATIVE  ACTION. 

of  administrative  law  really  consists  in  expressing  in 
details,  which  the  legislature  itself  is  unable  to  foresee 
or  which,  even  if  it  can  foresee,  it  is  unable  to  regulate, 
the  will  of  the  state,  the  expression  of  which  has  been 
made  only  incompletely  by  the  legislature.  While  the 
absolute  unconditional  commands  are  addressed  to  the 
people  subject  to  the  obedience  of  the  state,  the  rela- 
tive conditional  commands  are  rather  addressed  to  the 
administrative  authorities  and  are  instructions  to  them 
how  to  act  in  the  special  cases  for  which  provision  is 
made.  The  action  of  the  administration  is  not  there- 
fore confined  simply  to  the  execution  of  the  will  of  the 
state.  On  the  contrary  the  administration  has  a  large 
share  in  the  expression  of  the  will  of  the  state  in  those 
conditions  and  circumstances  in  which  the  legislature, 
as  the  regulator  of  the  administration,  has  said  that  it 
may  express  the  will  of  the  state.  The  administration 
acts  in  the  expression  of  the  will  of  the  state  in  two 
ways.  It  either  issues  ordinances  or  general  rules 
which  fill  up  details  not  regulated  in  the  statutes  and 
not  possible  of  regulation  by  the  legislature,  or  it  issues 
special  orders  not  of  general  but  of  individual  applica- 
tion which  apply  either  the  statute  law  alone  or  the 
statute  law  as  supplemented  by  administrative  ordi- 
nance. 

1.  Admtinist/rative  ordinance. — It  has  already  been 
shown  ^  that  ordinances  may  be  classified  as  indepen- 
dent, supplementary,  and  delegated  ;  and  that,  while  in 
monarchical  governments  the  executive  has  the  right 
of  supplementary  and  in  some  cases  of  independent 
ordinance,  in  the  United  States  the  executive  has 
simply   the   right   of    delegated    ordinance.      Ofiicial 

1  Supra,  I.,  p.  28. 


EXFUESSION  OF  THE  WILL  OF  THE  STATE,      in 

authority  is  based  in  all  cases  on  the  constitution 
or  statutes/  It  has  also  been  shown  that  in  all  coun- 
tries the  heads  of  the  various  executive  departments 
and  the  various  local  authorities  have  the  right  of  dele- 
gated ordinance.  Attention  need  be  directed  here 
only  to  the  fact  that  while  in  this  country  the  statutes 
of  the  legislature  descend  very  much  into  detail,  in 
England  and  especially  on  the  continent  of  Europe, 
the  legislature  confines  itself  very  much  more  to  the 
enactment  of  general  principles  which  it  is  then  the 
duty*  of  the  executive,  the  heads  of  executive  depart- 
ments, or  the  local  authorities  by  ordinance  to  carry 
out  in  their  details.  Thus  on  the  continent  the  prac- 
tice is  to  grant  to  the  local  authorities  the  local  police 
power  in  the  exercise  of  which  they  may  enact  almost 
any  kind  of  ordinance  whose  end  is  to  prevent  the 
happening  of  harm  of  any  kind  to  the  people  under 
their  jurisdiction.^  In  this  country,  on  the  other  hand, 
where  the  power  of  local  ordinance  is  granted  by  the 
legislature  the  practice  is  to  grant  to  some  one  author- 
ity the  power  to  regulate  the  details  with  regard  to 
some  particular  matter  or  matters.  In  some  cases  the 
administrative  authority,  which  has  the  ordinance 
power,  has  also  the  right  to  sanction  its  ordinances,^ 
though  the  tendency  at  the  present  time  is  for  the 
legislature  in  the  penal  code  or  in  some  general  law 
itself  to  sanction  all  administrative  ordinances.*  While 
on  the  continent  the  administrative  authorities  have 
much  wider  ordinance  power  than  have  the  adminis- 
trative authorities  in  the  United  States  they  are,  in 

^  Cf.  Mechem.,  op.  cit.,  sees.  501  et  seq. 

* E.  g.  ordinance  power  of  French  mayor,  supra,  I.,  p.  288. 

•  Dillon,  op.  cit.,  I.,  412  ei  seq. 

*  Cf.  e.  g.,  the  French  penal  code,  art.  471,  sec.  15. 


112  ADMINISTRA  TIVE  ACTION. 

order  to  prevent  an  abuse  of  their  power,  usually 
subjected  to  some  sort  of  an  administrative  control  in 
the  exercise  of  this  important  power.  Generally  either 
the  approval  of  some  higher  authority  is  required  in 
order  that  the  ordinances  issued  hj  a  local  authority 
be  valid,  or  else  as  in  Germany  the  ordinances  must 
be  issued  with  the  concurrence  of  some  one  of  the 
numerous  popular  lay  authorities  which  have  been 
created  by  the  late  local  government  reform.^  In  Eng- 
land also  where  the  domain  of  local  ordinance  has  of 
late  been  considerably  extended,  this  central  admin- 
istrative approval  is  being  introduced.^  All  ordinances 
in  all  countries  must,  in  order  that  they  shall  have  force, 
be  brought  by  some  legal  means  to  the  notice  of  those 
persons  whom  they  will  affect.^  The  means  usually 
adopted  is  the  same  as  that  provided  for  statutes,  that 
is,  publication  of  some  sort. 

2.  Special  administrative  order. — In  the  second  place 
the  administration  aids  in  the  expression  of  the  will  of 
the  state  by  the  issue  of  special  orders  of  individual 
and  not  general  application.  It  has  been  shown  that 
the  legislature  of  no  state  is  able  in  all  cases  to  declare 
what  shall  be  the  will  of  the  state  in  such  detail  as  to 
preclude  the  necessity  of  some  special  action  on  the 
part  of  the  administration.  Nor  can  administrative 
ordinance,  and  for  the  same  reasons.  Thus  no  general 
rule  of  any  kind  can  declare  by  name  what  persons 
shall  pursue  those  trades  which  require  a  license,  or 
what  persons  or  property  shall  pay  direct  taxes  or  the 
amount  in  money  of  their  taxes.    All  that  can  be  done 

^  Supra,  I.,  pp.  304,  315.  2  Supra,  I.,  p.  260. 

*  How  and  Bemis,  Municipal  Police  Ordinances,  352  ;  Kneib  v.  People.  6 
Hun,  238  ;  State  v.  Hoboken,  38  N.  J.  L.,  no;  Baltimore  v.  Johnson,  62 
Md.,  225  ;  Higley  v.  Bunce,  10  Conn.,  436  ;  Burnett  v.  Newark,  28  111.,  62. 


EXPRESSION  OF  THE  WILL  OF  THE  STATE.      113 

by  general  rule  is  to  determine  what  requirements 
those  persons  who  desire  to  pursue  licensed  trades 
shall  fulfil  and  under  what  conditions  and  at  what 
rate  taxes  shall  be  levied  on  persons  and  property. 
Of  course  in  the  case  of  license  taxes,  as  e,  g.  the 
"  special  taxes  "  formerly  levied  by  the  United  States 
national  government  on  dealers  in  tobacco,  it  is  possible 
to  say  that  each  taxpayer,  ^.  e.  each  dealer  in  tobacco, 
shall  pay  a  tax  specific  in  amount.  But  what  such  a 
method  may  gain  in  simplicity,  it  loses  in  justice ;  and 
when  it  comes  to  any  such  system  of  taxation  as 
property  taxation,  the  injustice  of  requiring  every 
property  owner  to  pay  the  same  amount  of  tax  would 
be  so  glaring  that  no  people  would  submit  to  it.  In 
order  that  any  system  of  property  taxation  shall  be 
just,  it  must  be  proportional,  i,  e,  the  amount  of  tax 
which  each  taxpayer  pays  must  be  in  proportion  to 
the  amount  of  property  which  he  possesses.  If  this 
rule  is  adopted,  as  it  is  almost  universally,  before  the 
amount  of  any  given  taxpayer's  tax  is  ascertained,  the 
amount  of  the  property  on  which  the  tax  is  levied 
must  be  determined.  The  same  general  principle  is 
true  in  the  case  of  licensed  trades.  If  any  sort  of 
control  is  to  be  kept  over  such  trades,  and  the  control 
of  these  trades  is  generally  the  reason  of  requiring 
them  to  be  licensed,  the  qualifications  of  the  person 
requesting  the  license  must  be  ascertained  before  the 
license  can  be  granted.  Now  the  conditional  rules  of 
law  which  it  is  the  duty  of  the  administration  to  apply 
in  all  these  cases  simply  state  under  what  conditions 
licenses  shall  be  granted  and  property  taxed,  and  what 
rules  shall  be  followed  by  the  administrative  authorities 
in  the  assessment  of  the  property  subject  to  taxation ; 

VOL.  II — 8 


114  ADMINISTRATIVE  ACTION. 

and  in  order  that  these  conditional  rules  of  law  may 
be  applied,  i,  e,  in  order  that  the  will  of  the  state  in 
the  particular  conditions  of  some  given  person  or  piece 
of  property  may  be  expressed  completely  so  that  it 
may  be  executed,  the  fact  of  the  existence  of  the  con- 
ditions referred  to  in  the  law  must  be  ascertained. 
Furthermore  the  ascertainment  of  the  existence  of 
these  conditions  is  the  duty  of  some  administrative 
officer,  whose  action  in  aiding  in  the  expression  of  the 
will  of  the  state  is  absolutely  necessary  before  that 
will  can  be  executed.  The  determination  reached  by 
such  an  officer  is  an  act  of  individual  and  not  of  gen- 
eral application.  In  this  country  there  is  no  general 
technical  name  for  such  an  act,  the  name  varying  with 
almost  each  kind  of  special  act  done.  Thus  such  a 
special  act  is  called  an  order,  a  precept,  a  warrant,  and 
a  decision. 

There  is  a  great  variety  of  such  special  acts.  Some 
are  in  the  form  of  "commands  to  subordinate  officers  or 
to  individuals  to  do  or  to  refrain  from  doing  some  par- 
ticular thing,  e.  g,  tax  warrants,  orders  of  payment, 
nuisance  removal  and  sanitary  orders ;  some  are  per- 
missions to  individuals  to  carry  on  a  given  business, 
e.  g.  licenses  and  authorizations  ;  some  are  prohibitions 
to  carry  on  a  business,  e.  g.  revocation  of  a  license  or 
authorization  ;  some  are  acts  which  create  a  new  legal 
person,  e.  g.  charters  of  incorporation ;  some  consist  of 
contracts  made  by  the  administration  for  the  govern- 
ment considered  as  a  juristic  person  or  "  fiscus  "  ;  some 
are  decisions  as  to  the  existence  of  certain  facts  whose 
ascertainment  is  necessary  in  order  that  the  will  of  the 
state  may  be  completely  expressed,  e.  g.  assessments, 
appraisements,  classification  of  articles  for  duties  in  the 


EXPRESSION  OF  THE  WILL  OF  THE  STATE.      115 

tax  and  customs  administration ;  and  finally  some  are 
appointments  to  office  or  orders  to  individuals  to  serve 
the  government  in  some  capacity,  e,  g,  notice  to  serve 
as  juror  or  in  the  military  service. 

In  the  performance  of  such  acts  the  administration 
must  follow  a  certain  procedure  which  is  laid  down  in 
the  law  granting  it  the  power  to  act.  The  law  thus 
says  in  the  first  place  that  certain  acts  shall  be  per- 
formed only  by  certain  authorities.  The  authority 
before  acting  in  any  of  these  cases  must  assure  itself 
that  it  is  competent,  for  its  acts  will  be  void  if  it  is 
incompetent.^  In  the  second  place  the  content  of  the 
act  must  be  in  accordance  with  the  law,  since  every 
administrative  order  must  find  its  basis  in  the  statutes 
or  supplementary  ordinances  of  the  administration.^ 
These  statutes  may  state  specifically,  as  in  this  coun- 
try, what  the  administrative  authorities  may  do,  or,  as 
on  the  continent,  they  may  lay  down  general  norms 
simply,  which  the  administration  must  follow  in  its 
discretion.  In  the  third  place  the  administrative  act 
must  be  performed  in  the  way  provided  for  in  the  law. 
This  is  especially  true  if  the  method  provided  by  law 
is  intended  for  the  protection  of  individual  rights.^ 
Sometimes  the  method  of  its  performance  is  laid  down 
in  the  greatest  detail  and  any  failure  to  follow  the 
manner  prescribed  will  be  fatal  to  the  validity  of  the 
act.  It  is  so  in  the  case  of  the  assessment  of  property 
for  the  purposes  of  taxation  * ;  of  the  destruction  by 
the  government  of  the  property  right  of  the  individual, 

'  Cf.  Mechem,  op.  cit,,  sees.  500-564,  for  the  detailed  rules  of  the  American 
law  as  to  the  competence  of  officers. 

^  Cf.  Mechem,  op.  cit.,  sec.  501,  citing  Atty.-Gen.  v.  Detroit  Common  Coun- 
cil, 58  Mich.,  213,  219. 

'  Cf.  Cooley,  Taxation,  2d  Ed.,  280  et  seq.  *  Ibid. 


1 16  ADMINISTRA  TIVE  ACTION. 

as  in  the  case  of  the  exercise  of  the  right  of  eminent 
domain  ^  and  also  in  the  case  of  the  contracts  made  by 
the  administration  for  the  government.^  The  reason  is 
that  in  the  one  case  it  is  considered  extremely  import- 
ant to  protect  individual  property  rights,  and  that 
in  the  other  the  government  is  so  liable  to  be  cheated 
by  its  officials  that  some  method  must  be  adopted  by 
means  of  which  the  responsibility  for  every  step  in  the 
making  of  the  contract  may  be  fixed  on  some  person, 
and  that  the  contractual  powers  of  governmental 
authorities  must  be  limited.  Further  it  is  often 
the  case  that  before  a  decision  may  be  reached  by 
the  administration  which  has  an  important  bearing 
upon  private  rights,  opportunity  must  be  given  to  all 
persons  who  are  interested  in  the  decision  to  raise  any 
objections  which  they  may  desire  to  make  to  the  pro- 
posed action  ;  and,  if  the  authority  which  is  to  take  the 
action  is  a  board,  that  sufficient  time  must  be  given  for 
deliberation,  and  that  the  decision  which  is  reached 
finally  must  be  made  by  a  majority  vote  of  all  the 
members  of  the  board  or  by  a  majority  of  a  quorum 
of  the  board.  Where  such  formalities  are  provided  it 
is,  it  may  be  said,  absolutely  necessary  to  the  validity 
of  the  action  of  the  administration  that  they  be  follow- 
ed. ^  Thus  the  United  States  courts  have  held  that 
the  "due  process  of  law  "  required  by  the  14th  amend- 
ment to  the  United  States  constitution  for  the  taking 
of  private  property  makes  the  opportunity  to  be  heard 
at  some  stage  of  the  proceedings  a  necessary  formality 

^  Dillon,  op.  cit.,  II.,  706  ;  Mechem,  op.  cit.,  581. 

'Dillon,  cp.  cit.,  I.,  520,  543,  and  cases  cited.     The  only  possible  exception 
to  this  rule  is  in  the  case  of  qtiasi  contracts,  Ibid.,  536. 

'  Cf.  Cooley,  op.  cit.,  287  ;  Mechem,  op,  cit.,  sees.  271-281. 


EXPRESSION  OF  THE  WILL  OF  THE  STATE.      117 

in  property  tax  proceedings/  Finally  the  order  like  the 
ordinance  must  be  brought  by  some  legal  means  to  the 
knowledge  of  the  person  or  persons  affected  by  it.  This 
is  particularly  true  of  assessments  for  the  purpose  of 
taxation.  As  a  general  thing  this  is  to  be  done  in 
writing  or  by  publication,  but  in  not  a  few  cases  a  mere 
verbal  order  is  sufficient,  as  e.  g,  in  the  case  of  an  order 
given  by  a  constable  or  peace  officer  to  a  disorderly 
assemblage  or  crowd  to  disperse. 

Thus  it  is  that  the  administration  discharges  a  most 
important  function  in  expressing  in  detail  the  will  of 
the  state,  so  far  as  that  will  has  not  been  expressed 
completely  in  the  statutes  by  the  legislature.  In  the 
discharge  of  this  function  of  expressing  the  will  of  the 
state  the  administration  must  necessarily  be  given  a 
wide  discretion  in  determining  the  existence  of  the 
conditions  which  the  law  requires  in  order  that  the 
administration  shall  act ;  and  in  the  exercise  of  this  dis- 
cretion the  administration  must  also  necessarily  come 
into  frequent  conflict  with  individuals.  This  is  espe- 
cially true  of  the  whole  domain  of  what  is  called  police 
administration,  where  the  administration  endeavors  to 
protect  the  individual  from  the  happening  of  harm 
through  the  limitation  of  the  right  of  individual  action. 
It  is  seen  thus  that  the  action  of  the  administration 
does  not  consist  in  mere  ministerial  action,  in  execution, 
that  it  must  perforce  exercise  great  discretion  in  ex- 
pressing the  wnll  of  the  state,  and  that  in  the  exercise  of 
this  discretion  it  has  an  enormous  influence  not  only 
upon  the  welfare  but  also  upon  the  sphere  of  free 
action  of  almost  every  individual  in  the  state.  But 
while  this  expression  of  the  will  of  the  state  is  one  of 

^See  Santa  Clara  Co.  v.  R.  R.  Co.,  18  Fed.  Rep.,  385. 


ii8  ADMINISTRATIVE  ACTION. 

the  functions  of  the  administration  and  has  an  import- 
ant  effect  upon  the  character  of  its  action,  still  the  duty 
par  excellence  of  the  administration  is  not  the  expres- 
sion but  the  execution  of  the  will  of  the  state.  For 
whether  that  will  has  been  expressed  fully  by  the 
legislature  or  partly  by  it  and  partly  by  the  adminis- 
tration it  is  in  almost  every  case  the  administration 
upon  which  devolves  the  execution  of  that  will  when 
once  completely  expressed. 


CHAPTER  TIL 

BXECUnON  OF  THE  WILL  OF  THE  STATE. 

/. — Means  of  execution. 

The  will  of  the  state,  whether  expressed  in  statute, 
ordinance,  or  individual  act  not  of  general  application, 
always  contains  either  expressly  or  impliedly  the  com- 
mand that  it  shall  be  executed.  This  mere  command 
may  in  many  cases  be  sufficient  and  in  all  cases  would  be 
sufficient  in  a  perfectly  well-ordered  community ;  since 
individuals  would,  if  they  were  perfectly  patriotic  and 
if  the  expressed  will  of  the  state  were  always  just 
and  in  accordance  with  the  law,  do  what  they  were 
commanded  to  do.  But  in  the  communities  with  which 
the  administration  has  to  deal,  for  some  reason  or  other 
individuals  will  in  many  cases  refuse  to  do  what  they 
are  commanded  to  do.  Some  means  must  therefore  be 
devised  to  ensure  their  obedience — to  ensure  that  the 
will  of  the  state  be  executed.  The  means  adopted  are 
various  in  kind. 

1.  Imposition  of  penalties, — On  account  of  the  lia- 
bility of  the  individual  to  refuse  to  obey  the  command 
of  the  law,  such  refusal  is  made  punishable.  This  is 
the  most  common  means  of  executing  the  will  of  the 
state  for  the  reason,  as  has  been  indicated,  of  its  ex- 
treme simplicity  and  that  it  leaves  little  to  the  discre- 

119 


I20  ADMINISTRATIVE  ACTION. 

tion  of  the  administration.  For,  as  a  general  rule,  the 
penalties  are  to  be  found  in  the  law  as  passed  by  the 
legislature  ^ ;  and  such  penalties  are  to  be  enforced  ul- 
timately by  the  ordinary  courts,  which  are  independent 
of  the  administration  and  act  in  accordance  with  the 
usual  rules  of  criminal  procedure.  In  this  way  the 
individual  is  amply  protected  against  arbitrary  action 
on  the  part  of  the  administration.  In  Germany  quite 
frequently  and  in  some  cases  in  the  United  States, 
however,  the  administration  itself  may  proceed  to  im- 
pose the  penalty  without  resort  to  the  courts,  and  the 
individual  against  whom  the  proceedings  are  taken  has 
the  right  to  appeal  to  some  judicial  body  against  the 
action  of  the  administi'ation.  ^ 

2.  Enforced perfm^mance  of  the  act  ordered, — Some- 
times the  execution  of  the  will  of  the  state  will  not  be 
effected  by  the  decree  of  a  penalty  either  by  the  courts 
or  by  the  administration  itself.  In  many  cases  the 
will  of  the  state  can  be  executed  only  by  the  perform- 
ance by  the  individual  of  a  definite  thing.  This  defi- 
nite thing  may  often  consist  in  the  payment  of  a  sum 
of  money ;  or  it  may  be  absolutely  necessary  that  the 
individual  with  whom  the  administration  comes  in 
conflict,  actually  himself  do  something  which  does  not 
consist  in  the  payment  of  a  sum  of  money. 

a.  Execution  of  tlie  law  hy  the  payment  of  a  sum  of 
money. — A  great  many  of  the  orders  of  the  adminis- 
tration, may  be  executed  by  ensuring  the  payment  of  a 
sum  of  money.  Thus  the  orders  of  the  administration 
to  individuals  to  pay  taxes  and  the  like  will  naturally 

^  There  are  a  few  cases,  especially  in  Germany,  in  which  the  administration 
has  the  right  of  sanctioning  its  own  ordinances  and  orders. 

2  Loening,  op.  cit.,  248,  note  i  ;  See  Cooley  on  Taxation,  2d  Ed.,  457; 
Parker  and  Worthington,  Public  Health  and  Safety,  103. 


EXECUTION  OF  THE  WILL  OF  THE  STATE.     121 

be  executed  by  the  payment  of  a  sum  of  money  and  be 
executed  also  naturally  only  in  this  way.  Further  it 
may  be  possible  that  the  act  demanded  of  the  indi- 
vidual by  the  administration  can  be  performed  by  the 
administration  itself,  whose  expenses  in  the  doing  of 
the  act  which  ought  to  have  been  done  by  the  indi- 
vidual at  his  own  expense,  like  taxes,  become  an  obli- 
gation of  the  person  disobeying  its  order.  For  example 
if  the  administration  orders  a  landlord  to  make  repairs 
which  are  necessary  from  a  sanitary  point  of  view,  and 
he  refuses,  it  is  perfectly  easy  for  the  administration  to 
step  in  and  do  the  work  itself  and  thus  found  an  obli- 
gation which  is  binding  upon  the  individual  to  repay 
it  the  expenses  which  it  has  been  obliged  to  incur  in 
order  to  do  the  work.  ^  Finally  a  similar  obligation  on 
the  part  of  the  individual  may  arise  from  the  fact 
that  a  penalty  has  been  incurred  in  the  nature  of  a  fine 
for  disobedience  of  the  law  or  the  orders  of  the  admin- 
istration itself  which,  as  has  been  shown,  has  the  right 
in  many  cases  to  impose  fines.  ^  The  methods  adopted 
to  ensure  the  payment  of  an  obligation  which  has 
arisen  in  this  way  are  usually  the  same  as  those  adopted 
to  ensure  the  payment  of  judgments  of  courts.  That 
is,  the  amount  due  is  either  made  a  lien  upon, the  real 
property  in  relation  to  which  the  obligation  was  formed 
and  may  be  collected  by  its  sale,  or  it  is  to  be  col- 
lected by  the  sale  of  the  personal  property  of  the  in- 
dividual from  whom  the  obligation  is  due.  ^ 

b.  Arrest — But  the  will  of  the  state  cannot  always 
be  executed  by  the  payment  of  a  sum  of  money.  In 
many  cases  it  can  be  executed  only  by  the  perform- 

^  See  N.  Y.  Law  1882,  c.  410,  sees.  630,  635. 
'  Ihid.^  sec.  633.  ^  Ibid.^  sees.  630,  85. 


122  ADMINISTRATIVE  ACTION. 

ance  of  a  given  action  or  the  prevention  of  a  given 
action.  Certain  things  must  be  done  or  certain  things 
must  not  be  done  in  order  that  the  will  of  the  state 
may  be  executed.  In  order  in  these  cases  to  compel 
the  recalcitrant  individual  to  act  or  to  refrain  from 
action  he  may  be  arrested  and  imprisoned.  The  power 
of  arrest  is  found  in  two  distinct  cases  in  all  countries. 
Often  simple  disobedience  of  the  expressed  will  of  the 
state  is  punished  by  short  terms  of  imprisonment  when 
the  administration  has  the  right  to  arrest  and  imprison 
the  disobedient  individual.^  The  other  case  in  which 
resort  is  had  to  arrest  and  imprisonment,  is  where  the 
individual  refuses  to  do  a  thing  which  he  has  been 
commanded  by  the  administration  to  do.  This  seems 
to  be  quite  common  in  Germany,  and  is  not  unknown 
in  the  United  States.^  In  such  case  the  arrest  and  im- 
prisonment are  quite  separate  and  apart  from  the  arrest 
and  imprisonment  which  the  individual  may  have 
made  himself  liable  to  by  his  original  disobedience  of 
the  law.  Simple  refusal  to  obey  a  competent  order  of 
the  administration  may  be  punishable  by  fine  and 
imprisonment. 

c.  Application  of  physical  force, — Finally  the  ad- 
ministration has  the  right  to  apply  physical  force  if 
one  of  its  competent  orders  cannot  be  enforced  in  any 
other  way.  The  force  may  be  applied  to  the  person 
or  to  some  object,  and  may  often  consist  in  depriving 
a  person  of  some  article,  in  shutting  up  some  location, 
or  in  putting  an  end  to  some  occupation,  as  e.  g.  in  the 

^  Ibid.^  sec.  85  ;  Commonwealth  v.  Byrne,  20  Grattan,  165,  198,  which  holds 
that  arrest  decreed  in  accordance  with  law  by  an  administrative  officer  in  the 
case  of  non-payment  of  taxes  is  due  process  of  law  and  constitutional. 

2  Stengel,  Worterbuch,  etc.,  II.,  8cx),  801  ;  Cooley,  Taxation,  2nd  Ed.,  437; 
Burroughs,  Taxation,  150. 


EXECUTION  OE  THE  WILL  OF  THE  ST  A  TE.     123 

shutting  up  of  an  illicit  still  and  the  destruction  or 
seizure  of  the  machinery  found  therein. 

In  all  these  cases,  if  resistance  is  offered  to  the  ad- 
ministration or  an  administrative  officer  acting  within 
his  competence,  the  person  offering  such  resistance 
may  be  arrested  and  punished,  and  ultimately  the 
entire  force  of  the  government  of  the  country  may  be 
called  upon  to  overcome  such  resistance.  Thus  in  the 
United  States  the  mayor  of  a  city  may  call  out  the 
militia^;  the  sheriff  in  the  county  may  also  call  out 
the  militia  or  the  'posse  comitatus ;  the  governor  may 
often  declare  a  county  in  a  state  of  insurrection,*^  and 
on  the  application  of  the  governor  or  of  his  own  mo- 
tion the  President  of  the  United  States  may  call  out 
the  forces  of  the  nation.^  Thus  every  order  of  the 
administration  has  ultimately  back  of  it  the  entire 
physical  force  of  the  government.  But  before  any  of 
the  orders  of  the  administration  may  be  enforced,  and 
before  force  may  actually  be  applied,  it  is  often  neces- 
sary  that  certain  formalities  be  complied  vrith,  which 
differ  considerably  in  the  different  countries.  This 
brings  us  to  the  methods  of  executing  the  will  of  the 
state  after  it  has  once  been  expressed  completely. 

//. — Methods  of  execution. 

In  general  there  are  two  methods  of  executing  the 
will  of  the  state.  Either  the  administration  may  pro- 
ceed of  its  own  motion  to  the  execution  of  its  orders  by 
the  use  of  the  proper  means,  subject  to  the  control  of 
the  courts,  which  may,  on  the  instance  of  the  indi. 
vidual  affected  by  its  action,  interfere  to  protect  his 

*  See  ^.  ^.  N.  Y.  L.  1882,  c.  410,  sec.  269.  '  Supra,  I.,  p.  75. 

"  U.  S.  Rev.  Stats,  sees.  5297,  5298. 


1 24  ADMINISTRA  TIVE  A  CTION, 

rights ;  or  it  is  necessary  for  the  administration  to  apply 
to  the  courts  in  the  first  instance  to  enforce  its  orders. 
The  latter  method  is  the  usual  one  in  the  United  States 
and  England,  although  there  are  cases  even  in  those 
countries  in  which  the  administration  may  proceed 
without  having  recourse  to  any  other  authority  ;  while 
the  former  method  seems  to  be  the  rule  upon  the 
continent. 

1.  Jvdicial  process. — The  reason  of  the  adoption  of 
the  general  rule  in  England  and  this  country  that  the 
administration  must  apply  to  the  courts  to  enforce  its 
orders  is  largely  historical.  It  will  be  remembered 
that  at  one  time  the  justices  of  the  peace  were  the 
most  important  administrative  officers  in  the  various 
localities  both  in  England  and  in  the  United  States. 
Acting  singly  or  in  pairs  or  in  their  courts  of  petty 
and  special  or  quarter  sessions  the  Justices  had  a  long 
series  of  really  administrative  duties  to  perform  which 
were  almost  inextricably  mixed  up  with  their  really 
Judicial  duties,  i.  e,  with  their  decision  of  criminal  cases 
and  cases  involving  purely  private  relations.*  It  is  true 
that  all  the  acts  of  the  Justices  were  clothed  in  about 
the  same  formula  ^ ;  but  these  may  be  put  into  three 
pretty  distinct  classes.  The  first  class  was  purely 
Judicial  and  took  on  the  form  of  convictions  or  Judg- 
ments made  after  previous  hearing.  The  second  was 
to  be  found  in  the  orders  which  they  issued  either  of 
their  own  motion  or  upon  the  proposition  of  an  inferior 
officer  such  as  a  constable  or  overseer  of  the  poor, 
where  no  previous  hearing  was  given  to  parties  who 
might  be  interested.    Thus  in  their  special  sessions  the 

^  Supra,  I.,  p,  239. 

'  Gneist,  Das  Englische  Verwaltungsrecht,  1884,  391,  392. 


EXECUTION  OF  THE  WILL  OF  THE  STATE.     125 

justices  appointed  parish  officers  and  made  up  the  jury- 
list.  In  their  courts  of  quarter  sessions  many  of  the 
acts  performed  in  the  exercise  of  their  original  jurisdic- 
tion, such  as  those  relating  to  the  financial  administra- 
tion of  the  county  or  the  passage  of  by-laws,  were  per- 
formed of  their  own  motion  and  belonged  to  this  class 
of  acts  which  were  really  administrative  in  character. 
In  the  third  class  may  be  placed  those  acts  consisting 
not  of  decisions  as  to  private  relations  or  of  convictions 
but  as  in  the  second  class  rather  of  orders  in  adminis- 
trative matters  where,  however,  before  the  order  was 
issued  a  hearing  was  given  to  parties  interested.  Some 
of  the  acts  of  this  class  were  performed  by  a  single 
justice  but  not  many;  some  were  performed  by  two 
justices  acting  together,  such  e.  g.  as  orders  of  removal 
and  orders  in  bastardy  in  the  poor-law  administration 
and  orders  to  abate  nuisances  in  the  sanitary  adminis- 
tration ;  some  were  performed  by  the  special  sessions, 
as  e,  g.  the  decisions  of  differences  arising  between  the 
overseers  of  the  poor  and  the  taxpayers  in  regard  to 
tax  assessments,  the  grant  of  licenses  to  ale-houses,  the 
taking  away  of  licenses,  the  decision  of  difficulties 
with  regard  to  the  building  of  roads,  etc.^  etc.  In  all 
these  cases  the  objections  of  interested  persons  were 
heard  before  the  decision  of  the  justices  was  made.^ 
These  acts  were  administrative  in  character  but  some- 
what judicial  in  form,  since  they  were  performed  only 
after  the  holding  of  some  sort  of  a  trial. 

In  the  course  of  time  a  separation  of  the  judicial 
and  administrative  functions  was  made  in  this  country, 
the  purely  administrative  powers  going  to  new  officers 
such  as  the  supervisors,  county  commissioners,  and  the 

^  Cf.  Ibid.,  266,  276-301  ;  381-4. 


126  ADMINISTRATIVE  ACTION. 

like,  the  purely  judicial  powers  and  most  of  tlie  powers 
whose  exercise  resulted  in  acts  judicial  in  form  going 
to  the  justices.  That  is  the  justices  retained  the  power 
of  deciding  on  all  convictions,  of  giving  judgments  in 
civil  cases  of  a  private  legal  character,  and  of  issuing 
almost  all  the  orders  which  might  be  executed  without 
further  action  by  any  authority.  The  same  powers 
possessed  by  the  justices  after  this  separation  of  judicial 
and  administrative  functions  have  since  been  conferred 
on  other  courts,  such  as  the  county  and  similar  courts, 
which  in  this  country  have  taken  in  the  judicial  organ- 
ization the  position  formerly  occupied  by  the  English 
courts  of  quarter  and  special  sessions.  The  result  of 
this  curious  evolution  of  the  justice  of  the  peace  from  a 
purely  or  almost  purely  administrative  ojficer  into  an 
almost  purely  judicial  officer  is  that,  since  the  justice  or 
his  successors  have  in  the  course  of  this  development 
largely  retained  the  power  of  ordering  given  things  to 
be  done  by  individuals,  the  administration  seldom  has 
the  right  to  proceed  to  execute  its  orders  without  hav- 
ing first  made  application  to  a  court  of  some  sort  for 
the  power  to  execute  the  order. 

Of  course  it  is  not  always  necessary  for  the  adminis- 
tration in  England  and  the  United  States  to  apply  to 
the  courts  in  order  to  enforce  its  orders.  In  certain 
cases  where  immediate  action  is  absolutely  necessary 
in  order  to  avoid  disastrous  results,  as  in  the  case  of 
the  abatement  of  a  nuisance  prejudicial  to  the  public 
health  and  in  the  case  of  the  payment  of  taxes,^  the 
administration  may  proceed  directly  to  enforce  its 
orders,  and  in  case  of  resistance  to  the  execution  of  the 

'  Cf.  N.  Y.  L.  1882,  c.  410,  sees.  926-929  ;  N.  Y.  L.  1885,  c.  270,  sec.  38  ; 
Parker  and  Worthington,  op.  cit,,  ch.  xii. 


EXECUTION  OF  THE  WILL  OF  THE  STATE.     127 

law  may,  without  application  to  the  courts,  apply 
force  to  overcome  such  resistance;  and  if  any  indi- 
vidual feels  aggrieved  by  the  action  of  the  adminis- 
tration he  may  appeal  to  the  courts  and  get  what 
satisfaction  he  can/ 

2.  Administrative  execution, — While  application  to 
the  courts  to  enforce  the  orders  of  the  administration 
is  generally  the  rule  in  England  and  the  United  States, 
and  may  thus  be  called  the  English  method  of  execu- 
ting the  will  of  the  state,  the  direct  execution  of  its 
orders  by  the  administration  is  the  rule  on  the  conti- 
nent. The  more  complete  separation  of  administi^ation 
from  justice  on  the  continent,  the  more  important  role 
assigned  to  the  administration  to  play  there,  the  greater 
confidence  the  people  have  in  its  Justice,  or  their 
greater  indifference  to  the  possession  by  the  adminis- 
tration of  large  powers,  has  caused  them  to  feel  that  it 
is  a  matter  of  little  consequence  what  authority  has 
the  power  of  directly  executing  the  law.  What  little 
deprivation  of  individual  rights  they  may  suffer  by  the 
grant  of  such  powers  to  the  administration  they  be- 
lieve is  compensated  for  by  the  greater  efficiency  of 
the  administration  resulting  from  its  greater  powers. 
Where  this  method  of  direct  execution  of  its  orders  by 
the  administration  has  been  adopted,  the  administra- 
tion often  has  the  right  to  threaten  persons  disobeying 
its  orders  with  a  penalty  which  it  itself  may  enforce, 
and  which  is  distinct  from  the  penalty  for  the  original 
disobedience.  It  may  directly  proceed  to  arrest  per- 
sons  and  seize  property,  shut  up  buildings  and  destroy 
objects,  and  prevent  given  individuals  from  following 

^  Such  summary  proceedings  in  the  case  of  collection  of  taxes  are  constitu- 
tional.    McMillan  v.  Anderson,  95  U.  S.,  37. 


128  ADMINISTRATIVE  ACTION 

certain  occupations  without  having  resort  to  any  judi- 
cial authority.  This  method  of  executing  the  will  of 
the  state  by  the  direct  act  of  the  administration  itself 
may  be  called,  in  analogy  with  the  action  of  the 
courts  in  enforcing  their  decrees,  execution,  and  in  dis- 
tinction from  their  action,  administrative  execution. 
In  all  countries,  as  has  been  indicated,  this  is  the 
method  adopted  to  enforce  the  payment  of  direct 
taxes.  The  administration  steps  in  and  of  its  own  ac- 
cord, without  the  intervention  of  any  other  authority, 
seizes  the  property  of  the  delinquent  taxpayer.*  This 
it  is  then  allowed  to  sell,  subject  often  to  the  owner's 
right  of  redemption.  After  deducting  from  the  pro- 
ceeds of  the  sale  the  amount  due  the  government,  it 
must  either  return  the  residue,  if  any,  to  the  owner  if 
he  can  be  found  or  if  he  cannot  be  found,  must  keep 
such  residue  in  trust  for  him.  This  is  often  the  case 
in  the  United  States  where  ordinarily  administrative 
execution  is  rare.^  This  same  method  of  administra- 
tive execution  is  also  adopted  in  some  countries  for 
the  enforcement  of  most  money  payments  due  the 
government,^  but  as  a  usual  thing  this  is  not  the  case 
in  the  United  States  "^  except  in  the  case  of  the  col- 
lection of  taxes  where  the  administration  is  regarded 
as  peculiarly  representative  of  the  sovereign.  In 
the  other  cases  of  sums  of  money  due  the  govern- 
ment, either  because  the  administration  is  not  regarded 

^  In  Germany,  however,  landed  property  can  be  seized  only  as  a  result  of  the 
action  of  a  court.     Stengel,  Deutsches  Verwaltungsrecht^  195. 

'\  See  e.  g.  N.  Y.  L.  1882,  c.  410,  sees.  926-954. 

^  So  in  France,  Ducrocq,  op.  cit.,  II.,  263  et  seq.  ;  Germany,  Civ.  Proz.  Ord., 
sees.  708-768. 

*  But  see  Murray's  Lessee  v.  Hoboken  Land  and  Improvement  Co.,  18  How., 
U.  S.,  272  which  holds  that  such  a  method  is  due  process  of  law  even  in  the  case 
of  debts  due  the  government. 


EXECUTION  OF  THE  WILL  OF  THE  ST  A  TE,     129 

as  SO  representative  of  the  sovereign  or  because  it  is 
felt  to  be  unsafe  to  give  the  administration  such  wide 
powers,  the  law  requires  that  the  administration  shall 
go  before  a  court  of  competent  jurisdiction,  present  its 
case  there,  and  trust  to  the  action  of  the  court  to 
execute  fche  will  of  the  state.  In  the  case  of  a  contract 
the  government  is  regarded  as  simply  a  juristic  person 
having  no  greater  rights  than  ordinary  persons  except 
perhaps  that  it  may  be  given  the  position  of  a  pre- 
ferred creditor ;  in  the  case  of  the  enforcement  of  a 
penalty  the  administration  is  regarded  as  simply  the 
prosecutor,  and  the  actual  execution  of  the  will  of  the 
state  is  left  to  the  courts,  which  may  thus,  if  they  see 
fit,  greatly  retard  the  action  of  the  administration  and 
exercise  a  wide  control  over  it. 

votn— 9 


CHAPTER  IV. 

THE  SOCIALISTIC  ACTION  OP  THE  ADMINISTRATION. 

The  foregoing  chapter  presupposes  some  positive 
action  on  the  part  of  the  administration  in  the  direc- 
tion of  limiting  the  sphere  of  individual  liberty  ;  action 
from  which  results  a  relation  of  antagonism  between 
the  administration  and  the  individual,  who  must,  how- 
ever, ultimately  submit  to  its  demands.  The  forms 
and  methods  of  action  resulting  from  this  relation  of 
antagonism  are  commands  and  the  application  offeree  to 
overcome  resistance.  In  these  cases  of  the  expression 
or  execution  of  the  will  of  the  state  the  administration 
has  been  considered  as  the  representative  of  the  sover- 
eign power,  and  as  entering  into  what  may  be  called 
legal  relations  with  individuals.  The  powers  of  the 
administration  and  the  forms  and  methods  of  its  action 
in  the  exercise  of  its  powers  are  not,  however,  exhausted 
in  the  enumeration  which  has  already  been  given  ;  for 
the  function  of  administration  is  the  realization  of  the 
ends  of  the  state.  The  administration  is  to  assist  in 
widening  the  circle  of  human  enjoyment  and  en- 
larging the  scope  of  human  opportunity  as  well  as  in 
limiting  the  sphere  of  individual  liberty ;  is  to  aid  man 
in  his  conflict  with  nature  as  well  asworder  his  relations 
with  his  fellow-man.^     It  must  oifer  to  the  inhabitants 

'  Cf.  Stengel,  Deutsches  Verwaltungsrecht,  172. 
130 


SOCIALISTIC  ACTION.  131 

of  the  state  means  of  communication,  must  bridge 
rivers,  construct  highways,  and  carry  the  mails;  it 
must  protect  the  coast  against  the  action  of  the  sea ; 
must  keep  the  records  of  legal  transactions,  such  as 
deeds  and  mortgages,  on  whose  correctness  and  accu- 
racy depends  the  validity  of  titles  to  property  ;  it  must 
issue  patents  and  charters,  by  which  new  rights  are 
created  ;  the  administration  must  in  fact  do  everything 
which  individuals  cannot  accomplish  or  cannot  accom- 
plish advantageously.  In  all  of  these  cases  it  is  seldom 
that  the  administration  acts  as  the  representative  of 
the  sovereign ;  seldom  that  it  enters  into  hostile  or 
antagonistic  relations  with  individuals,  for  the  purpose 
of  its  action  is  not  here  as  in  the  class  of  cases 
enumerated  in  the  preceding  chapters  to  circumscribe 
the  liberty  of  action  of  the  individual,  to  make  him 
yield  something  in  order  to  further  the  general  well- 
being  ;  its  purpose  is  on  the  contrary  to  offer  directly  to 
individuals  some  particular  advantage  by  which  they 
may  profit.  While  in  all  cases  the  action  of  the  ad- 
ministration is,  or  should  be,  intended  to  promote  the 
public  welfare,  it  accomplishes  this  end  in  the  two 
classes  of  cases  by  totally  different  means.  In  the  one 
it  acts  by  repression,  in  the  other  by  the  direct  tender 
of  some  service.  The  natural  result  is  that  the  methods 
and  forms  of  its  action  will  be  quite  different  in  the 
different  cases.  In  the  one  class,  the  form  of  its  action 
is  a  command  and  its  enforcement,  in  the  other  it  is  a 
rendering  of  a  positive  service  to  the  individual  upon 
his  initiation  and  his  compliance  with  the  proper  pre- 
liminaries. Thus  the  individual  need  only  properly 
dii'ect  and  stamp  mail  matter  and  tender  it  to  the  ad- 
ministration and  the  administration  will  transmit  it  to 


132  ADMINISTRATIVE  ACTION, 

the  proper  address ;  he  need  only  present  a  deed  or  a 
mortgage  properly  acknowledged,  and  on  tender  of  the 
fee  fixed  by  law  the  administration  will  record  it ;  he 
need  only  apply  for  a  patent  for  a  new  invention  which 
will  be  given  to  him  if  he  has  complied  with  the  con- 
ditions laid  down  in  the  law.  The  form  which  the 
action  of  the  administration  vrill  take  in  these  cases 
will  be  either  that  of  contract  which  is  usually,  how- 
ever, governed  by  peculiar  rules,^  or  of  a  certificate  or 
authentication  which,  if  official  in  character,  will  be 
taken  judicial  notice  of  by  the  courts. 

Further  in  order  to  perform  many  of  these  duties,  as 
indeed  to  perform  any  other  of  its  multifarious  duties, 
the  administration  must  have  an  acquaintance  with  the 
relations  into  which  it  enters.  Sometimes  the  necessary 
acquaintance  is  obtained  by  simple  observation.  Simple 
observation  is  all  that  is  necessary  to  determine  the 
existence  of  a  nuisance,  the  necessity  of  laying  out  a 
new  highway,  or  of  the  construction  of  a  bridge.  But 
at  other  and  most  times  more  complicated  conditions 
must  be  examined,  the  effect  of  laws  and  institutions 
must  be  discovered,  a  vast  amount  of  information  in 
regard  to  social  phenomena  must  be  obtained  before 
the  administration  or  even  the  government  as  a  whole 
can  wisely  proceed  to  act.  In  many  cases  physical 
laws  and  natural  forces  must  also  be  studied  and  in- 
formation as  to  their  workings  must  be  collected.  For 
though  the  government  comes  mainly  into  contact  with 
human  beings,  it  regulates  their  relations  often  only  in 
the  hope  of  bringing  the  individual  into  harmony  with 
his  environment ;  in  other  words  it  forces  him  to  obey 
natural  forces  and  laws.     The  government  directs  the 

*  Supra,  I..  P-  lO' 


SOCIALISTIC  ACTION, 


133 


mode  of  human  life  and  limits  the  freedom  of  individ- 
ual action,  but  it  does  this  only  with  the  desire  of 
improving  the  moral  and  sanitary  conditions  of  the 
people.  In  order  to  accomplish  this  duty  the  govern- 
ment must  understand  what  conditions  are  provocative 
of  evil ;  what  environment  is  favorable  to  the  spread 
of  disease.  The  necessary  understanding  cannot  in 
these  instances  be  obtained  through  simple  observation. 
Resort  must  be  had  to  some  other  means  of  acquinng 
information.  Investigations  must  be  held,  testimony 
must  be  taken,  experts  must  be  heard,  long  series  of 
statistics  must  be  collected  and  examined.  Of  course 
these  are  not  means  exclusively  used  by  the  adminis- 
tration or  the  government.  Courts  hear  testimony, 
legislatures  make  investigations,  and  statistics  are  gath- 
ered by  private  persons  and  associations,  and  are  used 
by  them  to  prove  and  disprove  every  imaginable  proposi- 
tion. The  collection  of  information  and  statistics  is 
not  therefore  a  characteristic  function  of  administration 
or  even  of  government ;  nor  will  the  form  of  the  action 
of  the  administration  in  these  cases  be  peculiar  or  dif- 
ferent from  that  of  the  action  of  private  bodies  with 
the  single  exception  that  the  results  will  be  more 
readily  believed  and  are,  not  infrequently,  presumed  to 
be  true  in  official  proceedings.  There  is  a  large  class 
of  statistics,  however,  a  certain  kind  of  information 
which  governmental  organs  alone  can  in  the  nature  of 
things  collect,  partly  because  of  the  immensity  of  the 
task,  partly  because  it  is  often  necessary,  in  order  to 
obtain  such  information  and  to  collect  such  statistics 
at  all,  to  apply  force  or  at  least  to  provide  that  the 
power  to  apply  force  exist,  and  the  government  is  the 
only  organization   in   a   well   ordered   community  to 


134  ADMINISTRATIVE  ACTION, 

which  the  application  of  force  can  safely  be  entrusted. 
The  organ  of  the  government  which  is  peculiarly  fitted 
to  perform  this  duty  of  acquiring  information  and  col- 
lecting statistics  is  the  active  organ  of  the  government, 
that  is  the  administration.  It  is  also  the  only  organ 
properly  organized  for  this  purpose.  But  though  it  is 
the  best  fitted  to  perform  this  duty,  it  does  not  by  any 
means  confine  its  activity  in  this  direction  to  the  col- 
lection of  those  statistics  and  that  information  which 
will  be  of  immediate  use  to  it  alone.  On  the  contrary 
the  administration  is  or  should  be  the  permanent  col- 
lector of  much  information  and  most  statistics  which 
are  made  use  of  by  the  other  departments  of  the  gov- 
ernment whose  action,  as  has  been  shown,  must  be 
based  on  a  wide  knowledge  of  facts  and  relations,  and 
by  the  people  at  large  in  their  search  for  social  and 
economic  laws  and  for  the  causes  of  and  remedies  for 
existing  conditions. 

This  kind  of  administrative  activity,  whose  purpose 
is  the  direct  furtherance  of  the  social  welfare,  may  be 
called  socialistic  in  distinction  from  the  governmental 
activity  whose  forms  and  methods  were  analyzed  in 
the  preceding  chapters  and  in  which  the  administration 
is  to  be  seen  representing  the  sovereign  power  of  the 
state.  Its  forms  and  methods  are  not  peculiar  to  gov- 
ernmental activity,  but  are  in  the  nature  of  contracts, 
of  decisions  arrived  at  by  synthetical  processes.  It  is, 
however,  necessary  to  mention  them  in  order  to  convey 
an  adequate  idea  of  the  field  of  administrative  activity, 
and  of  the  forms  and  methods  of  administrative  action. 


BOOK  VI. 

THE   CONTROL    OVER    THE    ADMINISTRA- 

TION. 

DiA)ision  1. — Methods  of  ConPtvl. 


CHAPTER  I. 

FORMATION    OP   THE    CONTROL. 

/. — Necessity  of  control. 

The  action  of  tlie  administration,  whose  forms  and 
methods  have  been  described  in  the  last  book,  is  so 
important  that  it  is  impossible  for  any  country  possess- 
ing constitutional  government  to  allow  the  administra- 
tion perfectly  free  hand  in  the  discharge  of  its  duties. 
The  public  is  so  dependent  upon  the  action  of  the 
administration  that  it  is  of  the  utmost  importance  that 
the  administration  shall  be  efficient.  The  administra- 
tion attends  to  many  things  which  it  is  impossible  for 
individuals  to  attend  to  at  all.  If  the  administration 
does  not  perform  its  duties  or  performs  them  unwisely 
or  inefficiently  it  will  follow  that  these  things  will  not 
be  done  at  all  or  will  be  done  in  such  a  wav  that  the 
results  of  administrative  action  will  be  of  little  value. 
Individuals  also  are  so  at  the  mercy  of  the  administra- 

135 


136      CONTROL  OVER  THE  ADMINISTRATION. 

tion  that  some  protection  must  be  offered  to  tliem 
against  the  violation  of  their  rights.  The  administra- 
tion is  often  thrown  into  relations  with  the  individual 
citizens  which  must  necessarily  be  hostile.  It  demands 
of  them  sacrifices  which  they  regard  as  unreasonable 
or  as  not  justified  by  the  law  of  the  land.  Nearly 
all  of  the  expressions  of  the  will  of  the  state  which 
are  to  be  carried  out  in  their  details  and  executed  by 
the  administration  cause  a  conflict  at  times  between 
the  conception  by  the  administration  of  what  the 
public  welfare  demands  and  the  conception  by  the  in- 
dividual of  the  sphere  of  private  rights  guaranteed  to 
him  by  the  law.  If  the  administration  had  in  such 
cases  the  power  of  perfectly  discretionary  and  uncon- 
trolled action,  it  is  to  be  feared  that  individual  rights 
would  be  violated.  For  the  administration  has  back 
of  it  the  entire  force  of  the  government.  Of  course 
it  is  the  purpose  of  all  administrative  legislation  to  re- 
duce as  far  as  possible  the  realm  of  administrative 
discretion,  to  lay  down  limits  within  which  the  admin- 
istration must  move.  But  it  is  impossible  to  do  this 
with  such  precision  as  efficiently  to  protect  individual 
rights.  The  discretion  of  the  administration  cannot 
be  completely  taken  away  by  legislation  without  caus- 
ing its  usefulness  to  be  seriously  impaired.  Large 
discretion  must  be  given  to  the  administration  in  all 
^^  states  by  the  legislative  authority,  so  large  that  some 
means  of  controlling  the  administration  must  be  de- 
vised if  private  rights  are  to  be  maintained. 

Finally  the  action  of  the  administration  should  be 
such  as  will,  as  far  as  possible,  promote  the  welfare  of 
society  at  large.  There  are  many  cases  where,  though 
the  action  of  the  administration  is  not  subversive  of 


FORMATION  OF  THE  CONTROL.  137 

the  private  rights  of  any  particular  person,  it  will  still 
not  be  in  accordance  with  the  interests  of  society  as  a 
whole.  Here  again  the  discretion  of  the  administration 
cannot,  without  diminishing  greatly  its  powers  of  use- 
fulness, be  so  controlled  by  legislation  as  perfectly  to 
ensure  the  promotion  of  the  public  welfare.  As  before 
some  other  means  must  be  devised  of  controlling  the 
action  of  the  administration  more  concrete  in  its  char- 
acter, more  adaptable  to  particular  cases. 

For  all  of  these  reasons  then  it  is  desirable,  indeed 
necessary,  that  there  be  formed  some  system  of  control 
over  the  action  of  the  administration  to  the  ends  that 
such  action  be  efficient,  consider  private  rights,  and 
promote  the  welfare  of  society  at  large. 

//. — Interests  to  be  regarded. 

The  formation  of  such  a  system  of  control  is  as  diffi- 
cult as  it  is  necessary,  partly  on  account  of  the  variety 
of  the  interests  to  be  regarded,  partly  on  account  of  the 
variety  and  continual  recurrence  of  the  administrative 
acts  to  be  controlled.  Analogies  from  other  branches 
of  the  law  must  be  used  with  caution,  because  each  of 
these  other  branches  of  the  law  has  as  a  rule  regard  for 
only  one  interest,  and  because  the  acts  to  be  controlled 
are  not  so  varied  in  kind.  Thus  private  law  aims  at 
the  maintenance  of  private  rights,  and  at  the  observance 
of  the  law  as  laid  down  in  the  books ;  it  seldom,  at  any 
rate  so  far  as  its  application  is  concerned,  has  regard  for 
expediency.  Again  criminal  law  aims  at  the  attainment 
of  good  social  conditions,  while  constitutional  and  inter- 
national law  aim  primarily  at  the  efficiency  of  govern- 
ment organization  and  the  maintenance  of  state  integrity 


138      CONTROL  OVER  THE  ADMINISTRATION 

and  power.  Constitutional  law  does,  it  is  true,  aim  also 
at  the  protection  of  private  rights,  in  so  far  as  it  formu- 
lates a  scheme  of  inviolable  rights,  but  the  remedies 
offered  for  their  violation,  and  without  which  they  are 
valueless,  are  to  be  found  in  the  control  over  adminis- 
trative action  provided  by  the  administrative  law.  If 
constitutional  law  formulates  the  rights,  administrative 
law  elaborates  the  remedies.  Administrative  law,  on 
the  other  hand,  endeavors  to  attain  all  these  three 
.  ends,  viz, J  state  integrity  and  power  and  efficient  gov- 
\  ernmental  action,  the  maintenance  of  private  rights,  and 
'the  attainment  of  good  social  conditions.  Therefore  we 
cannot  rely  on  any  one  kind  of  control  as  in  these  other 
branches  of  the  law.  No  system  of  private  or  even 
public  actions  will  suffice  to  control  the  application  of 
the  administrative  law  and  the  action  of  the  adminis- 
tration made  necessary  thereby,  as  it  undoubtedly  does 
suffice  for  the  control  of  the  application  of  private  and 
criminal  law.  No  system  of  administrative  centraliza- 
tion or  legislative  control  will  suffice  as  in  the  case  of 
international  and  constitutional  law.  On  the  contrary 
a  well  organized  control  over  the  application  of  the  ad- 
ministrative law  and  over  administrative  action  must 
make  use  of  all  these  three  methods  of  control,  since 
the  administrative  law  aims  at  governmental  efficiency, 
I  individual  liberty,  and  social  well-being.* 

In  the  formation  of  the  control  over  the  administra- 
tion regard  must  be  had  then  for  the  interests  to  be 
furthered  by  the  administrative  law.  The  first  of  these 
""  interests  is  that  of  governmental  efficiency.  Some 
method  of  control  must  be  devised  by  which  to  force 
the  officers  of  the  administration  to  act  in  case  they 

^  Cf.  Gneist,  Das  Englische  Verwaltungsrecht,  1884,  Book  II.,  Chap.  3,  I. 


FORMATION  OF  THE  CONTROL.  139 

neglect  their  duties,  or  to  correct  their  action  in  case 
they  act  unwisely.  As  many  cases  may  arise  where 
the  neglect  of  officials  will  not  cause  a  serious  violation 
of  private  rights  but  will  simply  tend  to  impair  the 
efficiency  of  the  administration,  and  as  it  is  the  in- 
terest of  the  government  that  its  administration  be 
efficient,  this  method  of  control  should  be  so  formed 
that  it  may  be  exercised  by  the  organs  of  the  govern- 
ment of  their  own  motion  and  not  simply  at  the  in- 
stance of  private  persons. 

The  second  interest  to  be  regarded  is  the  preservation 
of  individual  rights,  the  maintenance  in  its  entirety  of 
the  sphere  of  freedom  of  individual  action  guaranteed 
by  the  law  of  the  land.  Some  method  of  control  must  be 
devised  by  which  the  officers  of  the  government  may  be 
prevented  from  encroaching  upon  this  sphere.  As  this 
method  of  control  is  formed  in  the  interest  of  the  individ- 
ual, it  should  be  so  formed  that  it  may  be  exercised  by 
the  individual,  who  should  be  allowed  to  appeal  to  impar- 
tial tribunals  from  the  acts  of  the  administration  which, 
he  believes,  violate  the  rights  assured  to  him  by  the 
law.  Such  impartial  tribunals  are  found  in  the  courts 
as  at  present  organized  in  all  civilized  countries,  which 
in  various  ways  may  be  given  the  power  to  prevent 
encroachment  by  the  administration  on  the  domain  of 
private  rights. 

The  third  interest  to  be  regarded  by  the  administra- 
tive law  is  the  social  well-being.  There  must  be  some 
method  of  control  devised  which  will  force  the  admin- 
istration in  its  action  to  keep  before  its  mind  always 
that  it  is  not  a  law  unto  itself,  that  one  of  the  great 
reasons  of  its  existence  is  the  promotion  of  the  social 
welfare.     Such  a  method  of  control  should  be  so  organ- 


I40      CONTROL  OVER  THE  ADMINISTRATION. 

ized  as  to  allow  that  body  whicli  primarily  represents 
society  in  tlie  government,  i.  e.  the  legislature,  to  step 
in  and  compel  the  administration  to  regard  the  interests 
of  society.V 

///. — Kinds  of  controly  and  particularly  the  administrative 

control. 

There  are  thus  three  pretty  distinct  interests  to  be 
regarded  and  there  should  be  three  pretty  distinct 
methods  of  control,  each  of  which  aims  primarily  at 
the  protection  and  consideration  of  one  of  these  three 
interests.  These  three  methods  of  control  which  we 
find  in  all  states  in  various  stages  of  development  and 
perfection  are  called,  respectively,  the  administrative 
control,  the  judicial  control,  and  the  parliamentary 
or  legislative  control,  their  names  being  derived  from 
the  authority  which  exercises  them.^ 

1.  The  adminisi/t^ative  control, — We  have  in  the  first 
place  the  administrative  control.  This  is  exercised 
primarily  in  the  interest  of  governmental  eflS.ciency, 
though  it  may  be  used  subsidiarily  in  the  interest  of 
the  protection  of  private  rights  and  the  furtherance  of 
the  public  welfare.  Its  main  endeavor  is  to  obtain 
harmony  in  administrative  action,  efficiency  in  the 
service  in  general,  and  uprightness  and  competence  in 
the  officials.  It  is  exercised,  as  its  name  implies,  by 
the  higher  officers  of  the  administration  over  the  ac- 
tions of  their  subordinates.  It  is  thus  really  a  sort  of 
self-control,  and  its  extent  depends  altogether  upon  the 
degree  of  administrative  centralization  present  in  the 
administrative  system.     It  has  thus  been  sufficiently 

^  See  Gneist,  Das  Englische  Verwaltungsrecht,  1884,  320  et.  seq. 


^  UNIVERSITY  J 
FORMA^Nj;^yQ^'f)^ CONTROL.  141 

treated  in  the  discussion  which  has  been  had  of  the 
organization  of  the  administration.  Its  existence  must 
be  noticed,  however,  in  this  connection,  since  if  it  is 
well  developed  it  will  not  be  necessary  to  develop  so 
fully  the  other  means  of  control.  But  where  the  ad- 
ministrative control  is  not  developed,  i,  e,  where  the 
administration  is  not  somewhat  centralized,  it  will  be 
almost  useless  to  expect  any  great  efficiency.  Ad- 
ministrative efficiency  may,  of  course,  be  sought  in 
some  other  way,  but  the  main  means  of  obtaining  it  is 
through  centralization  and  an  administrative  control. 
When  analyzed,  this  administrative  control  will  be 
found  to  consist  of  a  disciplinary  power,^  and  a  power 
of  supervision  possessed  by  the  higher  administrative 
officers  over  the  lower  administrative  officers.  Refer- 
ence to  what  has  been  said  in  regard  to  administrative 
organization  and  particularly  to  what  has  been  said 
with  regard  to  the  relations  of  the  central  administra- 
tive authorities  with  the  administrative  authorities  in 
the  localities  will  show  that  the  administrative  control 
exists  hardly  at  all  in  the  United  States  outside  of  the 
national  administration,  where  it  is  quite  strong  and 
seems  to  be  growing  stronger ;  that  the  national  ad- 
ministration has  practically  no  control  over  the  admin- 
istration in  the  various  commonwealths ;  that  the 
central  administrative  authorities  in  the  common- 
wealths have  little  control  over  the  localities  or  the 
administrative  authorities  in  the  localities ;  and  that 
the  only  localities  where  the  administrative  control  of 
the  chief  local  authority  over  the  other  authorities  is 
at  all  well  developed  are  the  cities.  In  England, 
where  the  condition  of  the  administrative  control  was 

A  J  Supra,  II.,  p.  86. '^ 


142      CONTROL  OVER  THE  ADMINISTRATION. 

at  one  time  very  mu«h  the  same  as  in  the  United 
States  commonwealths  at  the  present  time,  there  has 
of  late  years  been  considerable  change.  Since  1834, 
and  as  a  result  of  the  reforms  in  the  local  government 
system,  the  administrative  control  has  been  very  much 
strengthened,  particularly  that  of  the  central  over  the 
local  authorities/  On  the  continent,  however,  the 
administrative  control  is  very  highly  developed.  The 
control  of  the  central  administrative  authorities  over 
the  localities  and  local  authorities  is  very  great,  and  as 
a  result  of  the  concentrated  character  of  tlie  local  gov- 
ernment system,  the  control  of  some  one  local  authority 
over  the  other  authorities  in  the  same  locality  is  a 
strong  one.^  But  while  in  England  the  tendency  has 
been  since  1834  to  increase  the  administrative  control 
of  the  central  authorities  over  the  localities,  on  the 
continent  the  tendency  has  been  just  the  other  way, 
i.  e.  towards  decentralization  and  local  self -ad  ministra- 
tion. Finally  it  is  to  be  noticed  that  in  the  federal 
government  of  the  Grerman  Empire,  as  in.  the  federal 
government  of  the  United  States,  the  national,  i.  e, 
the  imperial,  government  has  no  administrative  control 
over  the  administration  of  the  various  members  of  the 
empire. 

2.  The  judicial  control, — We  have  in  the  second 
place  the  judicial  control.  This  is  exercised  by  the 
courts  and  primarily  in  the  interest  of  the  individual 
for  the  protection  of  his  rights,  but  it  may  be  made  use 
of  subsidiarily  in  the  interest  of  administrative  efficiency. 
By  its  means  individuals  may  prevent  the  administration 
from  violating  their  rights  and  from  making  any  mis- 
application of  the  administrative  law. 

^  Supra,  I,  pp.  259  el  seq.  '  Supra^  I,  pp.  266-338. 


FORMATION  OF  THE  CONTROL.  143 

3.  TTie  pa/rliamentary  or  legislative  control. — This 
is  exercised  primarily  and,  it  may  be  said,  almost  ex- 
clusively in  the  interest  of  the  general  social  well-being, 
and  is  exercised  by  the  legislature  or  its  committees. 

Every  constitutional  state  has  formed  the  control 
over  its  administration  out  of  these  three  elements. 
But  the  strength  of  each  of  these  elements  in  the  dif- 
ferent states  varies  greatly  in  accordance  with  the  rela- 
tive prominence  of  the  end  sought  in  the  formation  of 
the  control,  and  indeed  the  whole  body  of  the  adminis- 
trative law.  In  one  country,  as  for  instance  in  Germany, 
we  find  that  the  end  aimed  at  in  the  administrative 
law  and  in  the  control  over  the  administration  is  the 
efficiency  of  the  government,  and  therefore  that  the 
administrative  control  is  very  great,  ^.  e,  the  adminis- 
tration is  highly  centralized  while  the  judicial  control 
is  comparatively  weak ;  in  another,  as  for  instance  in 
the  United  States,  the  end  mainly  sought  is  the  main- 
tenance in  its  integrity  of  the  sphere  of  individual 
rights.  Therefore  the  administration  is  quite  decen- 
tralized and  the  control  of  the  courts  over  it  very 
great.  As  the  administrative  control  has  been  suffi- 
ciently considered  in  what  has  already  been  written 
we  will  proceed  at  once  to  the  discussion  of  the 
judicial  control. 


Division  IL — The  Judicial  C<mt/rol. 


CHAPTER  I. 

ANALYSIS    OF   THE  JUDICIAL  CONTROL. 

/. — Use  of  ordinary  judicial  institutions. 

The  judicial  control  may  be  largely  ensured  by 
making  use  of  ordinary  judicial  machinery  and  by  the 
application  of  the  ordinary  rules  of  law  to  the  officers 
of  the  administration  who  are  to  be  controlled.  Thus 
the  government  may  be  regarded  as  a  juristic  person 
when  it  makes  contracts  or  commits  torts,  and  then 
considered  as  a  subject  of  private  rather  than  public 
law.  If  it  is  so  regarded,  the  ordinary  means  of  en- 
forcing contracts  and  redressing  wrongs  in  the  case  of 
private  persons  may  be  adopted  in  the  case  of  the 
government.  Again  the  officers  of  the  government 
may  be  treated  as  private  persons  and  apart  from  their 
official  capacity;  and  their  acts  done  under  color  of 
office  but  not  in  accordance  with  the  provisions  of  the 
law  may  then  be  treated  like  the  acts  of  private  persons 
\  and  subjected  to  the  control  of  the  ordinary  courts.  If 
without  jurisdiction  they  have  injured  individuals  they 
may  be  made  responsible  to  such  individuals  in  dam- 
ages.    Analogies  may  also  be  drawn  from  the  criminal 

144 


ANALYSIS  fF  THE  JUDICIAL  CONTROL.       145 

law.  Many  aPthe  rules  of  administrative  law  may  be 
put  into  the  form  of  absolute  unconditional  commands 
to  the  persons  in  the  obedience  of  the  state  to  do  or 
to  refray^  from  doing  particular  things,  and  the  viola- 
tion of  such  rules  of  law  may  be  made  punishable 
criminally ;  the  application  of  the  penalties  may  be 
entrusted  to  the  ordinary  courts  which,  before  inflicting  ^ 
theifl,  will  have  to  decide  as  to  the  criminality  of  the  act 
and  will  thus  exercise  a  control  over  the  action  of  the  ad- 
ministration when  it  endeavors  to  enforce  the  penalties. 
Further  the  ordinary  misdemeanors  of  officers  as  well 
as  the  violation  by  them  of  their  administrative  duties 
may  be  punished  in  the  same  way.  In  all  of  these 
cases  the  law,  in  order  to  form  a  judicial  control  over 
the  administration  and  its  officers,  makes  use  of  the 
ordinary  judicial  machinery  and  applies  to  the  admin-/ 
istration  the  ordinary  rules  of  private  and  criminal) 
law.  For  many  of  the  rules  of  administrative  law  such 
methods  of  control  will  be  sufficient,  since  the  action 
of  the  administration  in  applying  them  will  be  of  such 
a  character  that  it  will  be  subject  to  judicial  super- 
vision. Thus  the  wrongful  use  of  governmental  power 
by  officials  to  the  detriment  of  particular  individuals 
will  in  many  cases  be  prevented  by  the  fear  of  incur- 
ring a  liability  for  damages  caused  by  the  wrongful 
act  or  of  criminal  punishment.  Especially  will  this 
method  of  judicial  control  be  sufficient  in  the  case  of 
all  rules  of  administrative  law  which  are  put  into  the 
form  of  absolute  unconditional  commands.*  The  power 
which  the  courts  have  to  refuse  to  enforce  the  penal- 
ties for  their  violation,  in  case  the  administration  has 
endeavored  to  act  illegally,  will  preclude  the  possibility 


VOL.  II— 10 

^  Supra,  II.,  p.  106. 


146      CONTROL  OVER  THE  ADMINISTRATION. 

of  permanent  illegal  administrative  action.  For  the 
action  of  the  administration  in  such  cases  consists 
simply  in  prosecuting  the  violation  or  supposed  viola- 
tion before  the  police  or  criminal  courts  vrhich  usually 
form  a  part  of  the  ordinary  judicial  system.  The  ad- 
ministration has  no  discretion  to  exercise  and  its  action 
neither  needs  nor  admits  of  the  exercise  of  any  further 
control  in  the  interest  of  private  rights.  These  rights 
have  been  completely  safeguarded  in  the  first  place 
through  the  complete  expression  of  the  vdll  of  the 
state  by  the  legislature,  and  in  the  second  place  by  the 
designation  by  the  legislature  of  this  means  of  their 
execution.  But  in  certain  other  cases  the  action  of  the 
administration  is  not  of  such  a  character  as  to  permit 
of  its  being  brought  under  the  control  of  the  courts  by 
the  use  of  such  ordinary  judicial  institutions  and  by 
the  application  to  the  administration  of  the  ordinary 
rules  of  private  or  criminal  law.  In  these  cases  it  be- 
comes necessary,  in  order  that  the  judicial  control  shall 
have  any  value,  that  there  be  formed  a  special  jurisdic- 
tion of  some  sort. 

//. — A  dministrative  jurisdiction. 

It  has  been  shown  that  it  is  impossible  in  all  in- 
stances to  resort  to  the  method  of  putting  the  rules  of 
administrative  law  into  the  form  of  absolute  uncondi- 
tional commands,  that  in  many  cases  it  is  absolutely 
necessary  to  have  recourse  to  conditional  relative  com- 
mands,* commands  in  which  the  legislature  simply  lays 
down  the  general  conditions  of  administrative  action, 
in  which  the  legislature  leaves  to  the  administ^tion 
the  expression  of  the  will  of  the  state  in  the  minor 

'  Supra,  II.,  p.  log. 


ANALYSIS  OF  THE  JUDICIAL  CONTROL.      147 

details,  and  allows  it  in  its  discretion  to  ascertain  the 
existence  of  the  conditions  necessary  for  its  action  in 
the  execution  of  them.  Where  the  administration  has, 
in  order  to  execute  these  rules  of  administrative  law,  to 
aj>ply  to  the  courts  (^.  e.  where  the  method  of  adminis- 
trative execution  has  not  been  provided)  no  special 
judicial  control  is  in  many  cases  necessary  though  it 
may  often  be  provided.  For  the  courts,  as  in  the  case 
of  the  imposition  of  penalties  for  the  violation  of  the 
absolute  unconditional  commands,  may,  when  the  ad- 
ministration applies  to  them  for  the  power  to  put  its 
orders  into  execution,  refuse  to  grant  it  the  power  on 
the  ground  that  the  case  before  it  is  not  one  of  the 
cases  provided  for  in  the  law  ;  and  in  this  way  exercise 
a  sufficient  control  over  it.  But  for  all  cases  where 
administrative  execution  is  provided  or  where  the 
action  of  the  administration  is  not  reviewable  collater- 
ally by  the  courts,  which  is  usually  the  rule/  some 
method  must  be  devised  which  will  ensure  that  the 
administration  shall  act  only  in  the  cases  and  only  in 
the  way  in  which  the  law  has  said  that  it  shall  act. 
The  special  judicial  control  thus  formed  may  be  called 
and  in  most  states  is  called  an  administrative  jurisdic- 
tion because  it  is  a  special  jurisdiction  of  judicial  bodies 
over  the  acts  of  the  administration. 

///. — Kinds  of  judicial  control. 

The  judicial  control  thus  proves,  on  analysis,  to  be 
of  a  threefold  character.  In  the  first  place  it  is  exer- 
cised by  the  civil  courts,  first,  in  the  power  which  is 
almost  everywhere  given  to  them  to  entertain  suits  of 

'  Cooley,  Taxation^  2d  Ed.,  260,  and  cases  cited. 


148      CONTROL  OVER  THE  ADMINISTRATION, 

a  private  legal  character  against  or  by  the  government 
or  some  of  the  public  corporations  within  the  govern- 
ment ;  and,  second,  in  the  power  which  in  nearly  all 
countries  is  given  to  the  courts  to  entertain  suits  against 
officers  of  the  administration  for  the  damages  which 
they  may  have  caused  by  their  illegal  acts  or  the 
negligent  performance  of  their  duties. 

In  the  second  place  the  judicial  control  is  exercised 
by  the  criminal  courts,  first,  in  the  power  which  they 
have  to  pass  upon  the  validity  of  the  acts  of  the 
administration  when  an  individual  is  prosecuted  be- 
fore them  for  the  violation  of  these  acts  or  of  the  law 
which  the  administration  seeks  to  enforce ;  and,  second, 
in  the  power  which  they  have  to  punish  officials  for 
the  commission  of  ordinary  crimes  or  for  the  criminal 
violation  of  their  official  duties. 

In  the  third  place  either  there  have  been  formed 
special  courts,  or  there  has  been  given  to  the  ordinary 
courts  a  special  jurisdiction,  to  hear  appeals  directly 
against  the  acts  of  the  administration,  ^.  e,  an  adminis- 
trative jurisdiction.  As  a  result  of  the  possession  of 
the  administrative  jurisdiction  these  courts  may  often 
annul  or  amend  the  acts  of  the  administration  which 
are  complained  of. 

All  systems  of  administration  make  use  of  these 
different  methods  of  judicial  control  but  the  combina- 
tions of  the  different  elements  of  which  the  judicial 
control  consists,  will  be  found  different  in  the  different 
countries.  It  will  now  be  our  purpose  to  ascertain 
what  exactly  is  the  combination,  and  the  reasons  there- 
for, that  has  been  made  in  each  of  the  countries  vfhose 
law  is  being  examined. 


/- 


/ 


CHAPTER   11. 

CONTROL    OF   THE   CIVIL   COURTS. 

/. — Suits  by  or  against  the  government. 

The  power  of  the  courts  to  entertain  suits  in  con- 
tract or  tort,  to  which  the  government  or  one  of  its 
local  corporations  is  a  party,  depends  upon  the  extent 
to  which  the  government  in  its  central  or  local  organi- 
zation is  recognized  as  possessing  corporate  rights  and 
as  subject  to  corporate  liabilities,  upon  how  far  the 
government  is  to  be  treated  as  a  juristic  person.  As 
a  general  rule  of  law  it  may  be  said  that  the  govern- 
ment is  a  juristic  person  so  far  as  its  power  to  sue  is 
concerned,^  but  it  is  not  fully  settled  in  all  countries 
that  it  is  to  be  treated  as  a  juristic  person  in  the  case 
that  the  wrong  or  breach  of  contract  is  committed  by 
its  officers.^  The  idea  that  the  government  cannot  be 
sued  in  the  ordinary  courts  seems  to  have  arisen  from 
the  application  of  the  principles  of  the  Roman  law,^ 
and  the  adoption  of  the  monarchical  principle  that  the 
"  sovereign  can  do  no  wrong."     While  this  rule  seems 

^  Cf.  Dillon,  Municipal  Corporations^  4th  Ed.,  I.,  55  ;  see  also  United  States 
V.  Maurice,  2  Brockenbrough  U.  S.,  96,  100,  loi,  Opinion  by  Marshall, 
C.  J.  ;  U.  S.  V.  Tingey,  5  Peters,  115  ;  U.  S.  v.  Bradley,  10  Peters,  343; 
Dugan  V.  U.  S.,  3  Wheaton,  172. 

*  Dillon,  op.  cit.,  I.,  55. 

*  Cf.  Mommsen,  Romisches  Staatsrecht,  2d  Ed.,  I.,  170,  679  ;  II.,  712. 

149 


I50      CONTROL  OVER  THE  ADMINISTRATION. 

to  have  been  at  one  time  quite  universally  adopted  in 
European  states,  on  the  continent,  on  account  probably 
of  the  complete  conception  of  a  public  corporation,  it 
received  later  such  modifications  as  to  put  the  govern- 
ment in  almost  the  same  position  as  an  ordinary  cor- 
poration, it  being  called  fiscuSj  being  made  a  subject  of 
private  law  and  entering  into  almost  all  private  legal 
relations/  Further  in  order  to  facilitate  the  action 
of  the  government  as  a  subject  of  private  law,  in 
all  countries,  both  in  those  following  the  old  rule 
that  the  sovereign  can  do  no  wrong  and  therefore  may 
not  be  sued  in  the  courts  and  in  those  which  follow 
the  later  continental  rule  by  which  the  government  is 
regarded  as  fiscus  and  as  entering  into  private  legal  re- 
lations, many  of  the  local  organizations  of  the  govern- 
ment are  incorporated,  are  able  to  sue  and  are  liable 
to  be  sued  in  the  civil  courts.  On  account  of  these 
facts  it  is  necessary  to  consider  the  control  of  the 
courts  over  the  administration  in  this  matter  of  suits 
by  or  against  it,  from  the  standpoint  of  the  individual 
and  from  that  of  the  government,  and  also  from  the 
standpoint  of  the  central  government  and  from  that 
of  the  local  governmental  corporations. 

1.  Suits  by  the  government  against  individuals. — As 
far  as  the  local  corporations  are  concerned  it  may  be 
said  that  they  occupy  as  plaintiffs  in  a  suit  against 
individuals  just  about  the  same  position  that  individ- 
uals occupy.  In  all  private  law  suits  they  are  in  the 
same  position  as  mere  private  corporations.  Of  course 
in  many  instances  there  are  certain  formalities  which 
must  be  complied  with  by  certain  of  these  municipal 
corporations  before  they  can  bring  the  suit,  and  some- 

^  See  Sarwey,  Das  Oeffentlicke  Recht^  398. 


CONTROL  OF  THE  CIVIL  COURTS.  151 

times  before  they  can  defend  a  suit,  as  e.  g.  in  France 
where  the  conseut  of  the  council  of  the  prefecture  is 
necessary;  but  such  limitations  form  rather  a  part  of 
the  formalities  of  administrative  action  and  procedure 
than  a  part  of  the  control  of  the  courts  over  the  ad- 
ministration. When,  however,  we  come  to  the  central 
government  we  find  that  its  position  as  representative 
of  the  sovereign  does  have  quite  an  appreciable  effect 
in  several  instances  on  its  position  as  plaintiff  in  the 
courts.  In  some  cases,  as  has  been  indicated,  its  posi- 
tion as  representative  of  the  sovereign  is  carried  so  far 
as  to  permit  it  to  enforce  claims,  which  are  liquidated 
in  amount,  against  individuals  without  recourse  to  the 
courts  at  all  and  by  means  of  administrative  execution.* 
In  such  cases  the  only  control  that  the  courts  can  have 
over  the  private  legal  relations  of  the  government  is  to  be 
found  in  the  possibility,  which  is  often  present,  to  exercise 
their  administrative  jurisdiction  at  the  instance  of  some 
individual  against  the  enforcement  of  administrative 
execution.  And  even  where  administrative  execution 
has  not  been  adopted  for  the  enforcement  of  govern- 
ment claims,  where  the  government  has  to  proceed  in 
the  enforcement  of  its  claims  very  much  as  any  ordinary 
suitor,  it  often  has  certain  privileges  which  are  not  pos- 
sessed by  the  ordinary  suitor,  as  e,  g.  in  England  by  the 
Crown  suits  act,  or  it  occupies  the  position  of  a  pre- 
ferred creditor,  its  claims  taking  precedence  of  all  other 
claims.  In  case  the  government  sues  it  is  generally 
admitted  that  the  courts,  even  in  those  countries  which 
do  not  permit  suit  to  be  brought  against  the  govern- 
ment directly,  will  make  allowances  in  their  judgment 
for  any  counter-claim  or  set-off  proved  by  the  indi- 

'  See  Murray's  Lessee  v.  Hoboken,  etc.^   Co.,  18  How.,  U.  S.,  272. 


152      CONTROL  OVER  THE  ADMINISTRATION, 

vidual  who  is  defendant  to  the  suit/  Use  may  not, 
however,  be  made  of  this  power  to  give  judgment 
against  the  government.^ 

2.  Suits  against  local  corporations, — As  a  result  of 
the  desire  to  facilitate  the  conduct  of  the  private  legal 
relations  of  the  government  many  of  the  important 
localities,  into  which  the  state  is  divided,  are  regarded 
as  juristic  persons,  and  individuals  may  in  all  cases 
bring  suits  against  them  in  contract  and  often  in  tort. 
There  is,  however,  in  the  United  States  a  distinction 
made  between  what  are  known  as  quasi  corporations 
and  full  municipal  corporations,^  in  accordance  with 
which  suits  in  torts,  except  when  permitted  by  express 
statute,  may  not  be  brought  against  the  former,  inas- 
much as  they  are  agents  of  the  central  government,  as 
such  are  in  the  eyes  of  the  law  incapable  of  commit- 
ting a  wrong,  and  therefore  share  in  the  immunity 
possessed  by  the  sovereign  whom  they  are  regarded  as 
representing.*  Suits  in  tort  may,  however,  be  brought 
against  the  full  municipal  corporations  since  they  are 
formed  for  the  peculiar  advantage  of  the  inhabitants 
of  the  corporation  and  therefore  may,  like  private 
corporations,  be  made,  in  the  domain  of  private  legal 
relations,  subject  to  the  rule  of  private  law  that  the 
superior  is  responsible  for  the  acts  of  his  agents.^  But 
it  must  be  noticed  that  even  full  municipal  corporations 
are  not  generally  responsible  for  damages  resulting 
from  the  execution  of  what  are  called  governmental 

'  U.  S.  V.  Macdaniel,  7  Peters,  16  ;  cf.  U.  S.  v.  Ringgold,  8  Peters,  150,  163. 

2  U.  S.  V.  De  Groot,  5  Wall.,  419  ;  U.  S.  v.  Eckford,  6  Wall.,  484. 

'See  JM/ra,  I.,  p.  202. 

*  Morey  v.  Town  of  Newfane,  8  Barb.,  645,  648  ;  cf.  Hill  v.  Boston,  122 
Mass.,  344.     See  supra,  I.,  p.  173. 

^  Dillon,  Municipal  Corporations,  4th  Ed.,  I.,  45  ;  Bailey  v.  Mayor,  etc., 
SHill,  N.  Y.,531. 


CONTROL  OF  THE  CIVIL  COURTS.  153 

powers  in  contradistinction  to  their  private  powers.^ 
Further,  while  the  local  corporations  may  thus  be 
sued  and  judgment  obtained  against  them  in  the  usual 
way,  it  is  to  be  noticed  that  such  judgment  is  not 
commonly  collectible  in  the  usual  way,  ^.  e,  by  sale 
on  execution  of  the  property  of  such  corporations. 
For  such  a  method  would  interfere  too  much  with 
the  carrying  on  of  the  governmental  powers  which 
are  generally  conferred  on  these  corporations.  The 
usual  means  of  enforcing  a  judgment  against  one 
of  these  local  corporations  is  to  apply  to  the  proper 
authority,  in  case  the  administrative  control  has  been 
adopted,  then  to  the^supervisory  administrative  author- 
ity, in  case  this  is  not  the  method,  then  to  the  courts  for 
the  exercise  of  their  administrative  jurisdiction,  to  force 
the  proper  local  authority  to  insert  the  necessary  ap- 
propriation in  its  budget  and  to  provide  by  tax 
or  otherwise  for  the  payment  of  the  judgment.  The 
former  method  is  the  one  usually  adopted  in  France,^ 
the  latter  is  the  method  in  the  United  States.^  In 
Germany,  however,  in  some  places  the  law  permits  ex- 
ecution to  issue  in  somewhat  the  usual  way,  the  reason 
being  probably  that  the  localities  possess  as  juristic 
persons  a  large  amount  of  property  which  is  of  a  purely 
fiscal  character  and  is  not  made  use  of  for  the  various 
administrative  services  carried  on  by  the  local  corpora- 
tions.* Such  is  the  case  also  in  some  of  the  common- 
wealths of  the  United  States.  ^ 

*  Ibid.  ;  see  also  Cooley  on  Taxation,  2d  Ed.,  816. 

"  Boeuf,  op.  cit.,  229,  citing  Avis  du  Conseil  d'Etat  of  the  12th  of  August,  1807. 

3  E.  g.  see  N.  Y.  Rev.  Stats.  Part  III.,  Chap.  VIII.,  Title  IV.,  art.  fourth, 

sees.  102-4  ;  ^/'  Dillon,  op.  cit.,  II.,  1028  ;  Alden  v.  Alameda  Co.,  43  Cal.,  270. 

*  Sarwey,  Das  Oeffentliche  Recht,  300 
^  Dillon,  op.  cit.,  I.,  673. 


154      CONTROL  OVER  THE  ADMINISTRATION. 

3.  Suits  against  the  central  government — While  the 
rule  in  regard  to  suits  against  the  local  corporations  is, 
on  account  of  the  possession  by  the  localities  of  juristic 
personality,  much  the  same  everywhere,  viz.^  that  they 
may  be  sued  in  private  law  matters  at  the  instance  of 
the  individual  and  that  suits  are  brought  in  the  ordi- 
nary courts,  when  we  come  to  the  matter  of  suing  the 
central  government  we  find  much  less  similarity.  We 
find  that  there  is  an  English  rule  and  a  continental  rule. 

a.  The  English  rule, — The  English  law,  basing  it- 
self upon  the  principle  that  the  sovereign  can  do  no 
wrong,  and  believing  that  when  the  government  enters 
into  private  legal  relations  the  sovereign  acts  through 
it,  denies  in  principle  to  the  individual  the  right  to  sue 
the  central  government,  except  with  its  consent  or  in 
the  special  way  which  the  government  may  have  indi- 
cated.^ This  rule  which  formed  a  part  of  the  common 
law  was  introduced  into  this  country  after  the  forma- 
tion of  an  independent  government  here,^  although  from 
the  beginning  the  sovereign  has  here  been  separated 
from  the  government,  and  therefore  when  the  govern- 
ment was  acting  it  was  not  the  case  that  the  sovereign 
was  also  acting.  In  England,  to  prevent  this  privilege 
of  the  government  from  resulting  in  gross  injustice,  the 
individual  was  from  time  immemorial  allowed  respect- 
fully to  petition  the  Crown,  which  was  historically 
the  sovereign,  that  right  be  done  him.  Such  a  petition 
was  called  the  petition  of  right.^  It  is  now  pro- 
vided *  that  the  petition  of  right  shall  be  left  with  the 

'  Gneist,  Das  Englische  Verwaltungsrecht,  1884,  375. 

*  Dillon,^/,  cit.,  I.,  55. 

'  It  may  be  traced  back  as  far  as  14  Edw.  III.,  c.  14,  and  perhaps  even  as 
far  as  Magna  Charta. 

*  23  and  24  Vict,,  c.  34. 


CONTROL  OF  THE  CIVIL  COURTS.  155 

home  secretary.  It  is  then  submitted  to  the  Crown, 
which  acts  on  the  advice  of  the  attorney-general.  If 
he  thinks  that  the  statement  of  facts  contained  in  it  is 
sufficient  to  give  a  ground  of  action,  he  advises  the 
Crown  that  it  be  granted  and  is  responsible  to  Parlia- 
ment for  the  advice  which  he  gives.  In  case  he  ad- 
vises that  the  petition  be  granted  he  writes  on  it  the 
words  %oit  droit  fait  and  the  petition  is  then  heard  and 
decided  by  the  royal  courts.  By  this  method  it  will 
be  noticed  that  the  administration  has  the  power  to 
refuse  the  individual  the  right  to  sue  the  central 
government  in  the  courts  but  must  assume  to  Parlia- 
ment the  responsibility  for  such  refusal,  which  fact  may 
check  arbitrary  and  inconsiderate  action.  The  weak 
judicial  control  is  thus  in  this  instance  reinforced  by 
the  parliamentary  control.  Several  cases  have  deli- 
mited the  scope  of  the  petition  of  right.  Among  them 
may  be  mentioned  that  of  the  Viscount  Canterhury 
V.  Attorney  Generalj  which  holds  that  the  govern- 
ment may  not  through  the  petition  of  right  be  made 
responsible  for  the  tortious  acts  of  its  agents.^  But  it 
is  believed  that  where  an  officer  is  mulcted  in  damages 
for  carrying  out  the  orders  of  his  superior,  the  govern- 
ment is  morally  bound  to  indemnify  him  and  is  thus, 
morally  at  least,  responsible  for  the  torts  which  it  itself 
commits.^  Such  a  moral  obligation  is  sometimes  made 
a  legal  one  in  the  cases  of  unjust  enrichment  by  officers, 
as  in  the  case  of  the  payment  by  the  importer  on  the 
demand  of  the  collector  of  customs  of  more  than  the 
legal  duties.     Here  suit  may  be  brought  by  the  indi- 

'  I  Phillips,  306. 

'  The  same  rule  is  adopted  in  Tobin  v.  The  Queen,  16  C.  B.  N.  S.,  310. 

^  Todd,  Parliamentary  Government,  2d  Ed.,  I.,  496. 


156      CONTROL  OVER  THE  ADMINISTRATION. 

vidual  against  the  collector,  and  the  government  is  by- 
law obliged  to  reimburse  the  collector.^ 

b.  The  rule  in  the  United  States. — In  this  country 
the  method  of  the  petition  of  right  to  the  executive 
was  felt  to  be  inapplicable  inasmuch  as  the  executive 
was  not  historically  the  sovereign.  The  practice  was 
for  the  individual  to  petition  the  legislature,  which  in 
the  commonwealths  had  the  residuary  governmental 
power,  and  in  all  cases  the  power  over  the  public 
purse.^  If  the  petition  was  regarded  as  well  founded 
a  special  appropriation  bill  was  passed  which  was  man- 
datory upon  the  treasury. 3  In  the  national  govern- 
ment this  practice  has  undergone  considerable  modifica- 
tion. Congress  saw  that  it  was  beyond  its  power  to 
make  a  thorough  investigation  of  all  the  claims  which 
were  brought  before  it,  that  this  method  of  settling 
claims  practically  devolved  upon  it  a  vast  amount  of 
work  which  was  really  judicial  in  character  and  for  the 
performance  of  which  it  was  unfitted.  Therefore  in 
1855  an  act  was  passed  ^  providing  a  court  for  the  in- 
vestigation of  claims  against  the  United  States  govern- 
ment, based  upon  a  law  or  contract.  At  first  its  deci- 
sions had  no  legal  effect  whatever,  since  they  were 
drawn  up  in  the  form  of  a  bill  which  was  afterwards 
to  be  laid  before  Congress  for  its  approval.  The  act 
was  then  amended  so  as  to  make  the  court  of  claims  a 
real  court  whose  judgments  were  of  themselves  man- 
datory upon  the  secretary  of  the  treasury  and  binding 
upon  the  individual  suitor  and  were  to  be  paid  from 

*  39  and  40  Vict.,  c.  35. 

^  Cf.  O'Hara  v.  State,  112  N.  Y.,   146  ;  People  v.  Stephens,  71  N.  Y.,  527, 
540,  548. 

3  Kendall  v.  United  States,  12  Peters,  524. 

*  10  Stats,  at  Large,  612. 


CONTROL  OF  THE  CIVIL  COURTS. 


157 


any  general  appropriation  for  the  payment  of  private 
claims.  Appeal  might  be  taken  from  them  to  the  United 
States  Supreme  Court.^  This  court  of  claims  has  not, 
however,  the  same  powers  as  an  ordinary  United  States 
court.  Thus  it  has,  as  a  general  rule,  no  equity  juris- 
diction.^ It  has  also  no  jurisdiction  over  torts  com- 
mitted by  the  government,^  although,  in  order  to  render 
justice,  it  will  stretch  its  jurisdiction  by  means  of  the 
quasi  or  implied  contract  doctrines  so  as  to  embrace 
matters  which  bear  a  strong  resemblance  to  tortious 
acts.*  The  jurisdiction  of  the  court  of  claims  is  thus 
mainly  one  of  suits  in  contract.  In  such  suits  the 
court  may  in  its  decision  take  account  of  any  set-offs 
or  counter-claims  which  the  government  may  have 
against  the  individual  bringing  suit,  so  that  the  deci- 
sion may  result  in  a  judgment  against,  instead  of  in 
favor  of,  the  individual  suing.  The  law  organizing  the 
court  of  claims  also  provides  that  the  court  may  act 
as  an  advisory  body  to  Congress  or  to  the  executive 
departments  of  the  government  in  the  settling  of  other 
kinds  of  claims. 

Cases  before  the  court  of  claims  are  conducted  gen- 
erally in  accordance  with  the  ordinary  rules  of  law 
governing  the  matter  of  contracts  between  private 
individuals,  though  the  procedure  is  somewhat  differ- 
ent from  that  had  before  the  ordinary  United  States 
courts,  and  though  the  government  occupies  a  privi- 

1  12  Stats,  at  Large,  865. 

2  Bonner  V.  U.  S.,  9  Wallace,  156  ;  U.  S.  v.  Jones,  131  U.  S.,  i. 

3  Gibbons  v.  U.  S.,  8  Wallace,  269;  Morgan  v.  U.  S.,  14  Wallace,  31; 
Langford  v.  U.  S,,  loi  U.  S.,  341. 

*  See  4  Ct.  of  CI.,  248  ;  14  Ibid.,  396  ;  see  also  U.  S.  v.  Great  Falls  Mfg. 
Co.,  112  U.  S.,  645,  where  it  was  held  that  if  the  government  took  land  to 
which  it  asserted  no  title  there  was  an  implied  contract  to  pay  for  it.  So  also 
in  a  case  of  a  patented  invention,  U.  S.  v.  Palmer,  128  U.  S.,  262. 


158      CONTROL  OVER  THE  ADMINISTRATION. 

leged  position.  Thus  the  government  always  has  the 
right  to  appeal,  the  individual  only  in  specified  cases. 
Where  an  excessive  claim  is  fraudulently  and  wilfully 
made  the  whole  claim  is  lost.  This  is  true  also  in  case 
false  evidence  is  adduced.  The  judges  also  decide 
questions  both  of  law  and  of  fact ;  there  is  no  jury. 
The  procedure  in  the  court  of  claims  is  largely  in 
writing,  for  the  ease  of  the  suitors  in  the  court  who, 
were  they  obliged  to  appear  in  person,  might  be 
obliged  to  come  or  send  counsel  a  great  distance,  since 
the  court  sits  only  at  Washington.^  The  work  of  the 
court  of  claims  has  been  so  satisfactory  and  the  per- 
mission to  the  individual  to  sue  the  government  has 
resulted  in  so  little  inconvenience  to  the  government 
that  a  late  act  of  Congress  has  provided  that  individ- 
uals having  claims  against  the  government,  based  on  a 
law  or  contract  and  under  a  certain  amount,  may  bring 
suit  against  it  in  the  district  or  circuit  courts  of  the 
United  States,  which  is  then  tried  without  a  jury.^ 
Finally  there  are  one  or  two  special  courts  for  special 
classes  of  claims ;  e,  g.  court  for  French  spoliation  claims 
and  court  for  private  land  claims.^ 

It  will  be  noticed  that  by  a  gradual  development  of 
about  thirty  years  we  in  the  United  States  have  de- 
parted from  the  rule  that  the  individual  cannot  sue  the 
national  government,  and  have  now  practically  adopted 
I  the  rule  in  force  in  continental  Europe.  The  government 
/  is  conceived  of  as  a  juristic  person,  which  may  enter 
into  private  legal  relations  of  a  contractual  character, 

^  For  the  procedure  and  the  general  rules  governing  the  court  see  an  article 
in  the  Southern  Law  Review,  written  by  one  of  the  justices  of  the  court  (Judge 
Richardson)  and  reprinted  in  vol.  xvii.  of  the  reports  of  the  court  of  claims. 

^  24  Stats,  at  Large,  505,  1887. 

'  L.,  June  20,  1888,  March  3,  1890. 


CONTROL  OF  THE  CIVIL  COURTS.  159 

and  is  then  liable  to  be  sued  in  the  ordinary  courts. 
We  have  made  this  change  through  the  medium  of 
an  advisory  body  to  Congress,  which  was  changed 
into  a  special  court  for  the  trial  of  claims  against  the 
government.  But  while  we  have  thus  adopted  the 
continental  rule  that  the  government  may  be  sued  be- 
fore the  ordinary  courts  in  contract  we  have  not  as  yet 
adopted  the  rule  that  the  government  is  ever  respon- 
sible to  the  individual  for  torts  committed  by  its 
officers.^  By  a  special  statute  the  government  is  made 
responsible  for  the  judgments  obtained  by  individual 
taxpayers  where  they  have  paid  on  the  demand  of 
the  collectors  of  internal  revenue  more  than  the  taxes 
required  by  law.  Here  the  individual  may  sue  the 
collector  and  the  government  is  bound  to  pay  the  judg- 
ment.^ This  is,  however,  on  the  theory  of  unjust 
enrichment  rather  than  tort. 

In  the  commonwealths  of  the  United  States  this 
development  has  not  generally  taken  place.  The  old 
practice  seems  to  obtain.  The  individual  desiring  to 
enforce  a  claim  against  the  government  must  appeal  to 
the  legislature  and  get  a  special  appropriation  bill 
passed.  Here  as  in  the  case  of  the  national  govern- 
ment the  commonwealth  is  not  responsible  for  the 
torts  of  its  officers.^  In  some  of  the  commonwealths, 
however,  the  first  step  in  the  development  noticed  in 
the  United  States  government  has  taken  place.  In 
thirteen  of  the  commonwealths  the  constitution  pro- 
vides that  the  legislature  shall  provide  a  method  by 
which  suits  may  be  brought  against  the  government. 

'  Gibbons  v.  U.  S.,  8  Wallace,  269  ;  Langford  v.  U.  S.,  loi  U.  S.,  341. 

2  U.  S.  R.  S.,  sec.  3220. 

"  Clodfelter  v.  State,  86  N.  C,  51  ;  Lewis  v.  State,  96  N.  Y.,  71. 


i6o      CONTROL  OVER  THE  ADMINISTRATION. 

In  five,  however,  this  is  forbidden  by  the  constitution.^ 
In  others,  while  the  constitution  is  silent  on  this  point, 
the  legislature  has  provided  a  method  of  suing  the 
government.  Thus  in  New  York  the  legislature  has 
provided  an  advisory  body  for  the  purpose  of  investi- 
gating claims  against  the  government,  from  which 
appeal  may  be  taken  to  the  highest  judicial  court  and 
which  is  to  report  its  decisions  to  the  legislature  for 
action.^  In  other  commonw^ealths  the  legislature  has 
permitted  the  individual  to  sue  the  government  in  the 
ordinary  courts.^  In  the  commonwealths,  however,  the 
same  need  of  the  power  of  suing  the  government  is 
not  felt  as  in  the  national  government.  For  the  com- 
monwealth system  of  administration  is  so  decentralized 
that  it  may  safely  be  said  that  most  of  the  contracts 
made  by  the  administration  are  made  by  some  one  of 
the  local  corporations  which  possess  so  many  of  the 
powers  of  government.  Thus,  notwithstanding  the 
rule  that  suits  may  not  be  brought  against  the  central 
government  of  the  commonwealth,  which  may  be  subject 
to  no  exceptions,  most  of  the  contractual  acts  of  the  ad- 
ministration are  subject  to  judicial  control  in  that  they 
may  be  made  the  subject  of  suits  in  the  courts  through 
the  power  of  the  courts  to  entertain  suits  against  the 
local  corporations. 

Finally  it  is  to  be  noticed  that,  while  the  govern- 
ment is  not  responsible  for  the  tortious  acts  of  its 
officers  in  the  domain  of  either  public  or  private  law 
except  in  the  case  of  the  local  corporations,  still  it 
seems  to  be  recognized  that  it  is  not  only  in  its  local 

'  Stimson,  op,  cit.,  sec.  75. 

'  N.  Y.  L.  1883,  c.  205  ;  cf.  Dillon,  op.  cit.,  I.,  55,  and  cases  cited. 

*  See  Clodfelter  v.  State,  86  N.  C,  51. 


CONTROL  OF  THE  CIVIL  COURTS.  i6i 

corporate  organizations,  including  municipal  corpora- 
tions, but  also  in  its  central  organization  permitted  to 
indemnify  its  officers  for  liability  which  they  may  incur 
in  the  hona  fide  discharge  of  their  duties,  and  may 
raise  money  for  that  purpose.* 

c.  The  continental  rule. — On  the  continent  the  rule 
is  that  the  government  is  liable  to  be  sued  by  an  indi- 
vidual in  contract  and  also  in  tort,  where  the  tortious 
act  is  not  committed  in  the  performance  of  functions  of  • 
a  distinctly  public  legal  character  and  where  the  fault 
of  the  officer  causing  it  is  not  purely  personal  to  him- 
self but  consists  rather  in  bad  service,  in  an  order 
badly  given,  not  understood,  or  imprudently  or  care- 
lessly executed.^  Thus  the  government  would  not  be 
held  responsible  for  damages  caused  by  its  agents  in 
the  collection  of  taxes  while  it  would  be  if  a  ship  were 
injured  by  the  negligence  of  the  officers  of  one  of  its 
men-of-war.^  An  example  of  the  purely  personal  act 
of  one  of  its  agents  for  which  the  government  would 
not  be  responsible  would  be  found  in  the  case  of  theft 
by  him.  While  the  general  rule  as  to  the  responsi- 
bility of  the  government  for  its  contracts  and  torts  is 
the  same  in  France  and  Germany,  the  courts  before 
which  such  suits  should  be  brought  are  different.  In 
France  while  the  common  law  rule  in  the  absence  of 
statute  would  appear  to  be  that  the  ordinary  civil 
courts  have  jurisdiction,  so  many  special  statutes  have, 
as  a  matter  of  fact,  been  passed  giving  the  jurisdiction 
to  the  administrative  courts  that  it  is  laid  down  as  the 

^  Mechem,  op.  cit.,  sec.  879 ;  cf.  Tracy  v.  Swartout,  10  Peters,  80. 

'  Ducrocq,  Droit  Administratif^  sees.  1055  et  seq^  ;  Laferri^re,  La  yuridiction 
Administrative y  II.,  149  et  seq.  ;  Von  Ronne,  Das  Staatsrecht  der  Preussischcn 
Monarchic,  III.,  583,  584  ;  Bornhak,  Preussisches  Staatsrecht,  II.,  47. 

'  Cf.  Ducrocq,  op.  cit.,  II.,  230,  citing  a  decision  of  the  Council  of  State. 

VOL.  II. — II. 


i62      CONTROL  OVER  THE  ADMINISTRATION, 

rule  that  the  administrative  courts  are  alone  competent 
to  declare  the  government  a  debtor/  In  Germany, 
however,  it  is  the  ordinary  courts  which  have  jurisdic- 
tion of  actions  both  in  contract  and  tort  against  the 
government.^  The  German  rule  as  to  the  court  which 
has  jurisdiction  of  these  cases  against  the  government 
seems  to  be  by  far  the  more  logical,  since  the  whole 
responsibility  of  the  government  is  based  upon  the 
theory  of  its  juristic  personality,  and  of  its  capacity  to 
enter  into  private  legal  relations  of  ail  sorts  and  the 
consequent  possibility  of  its  being  held  responsible 
before  those  courts  which  have  in  their  hands  the 
application  of  the  private  law.  The  reason  for  the 
adoption  of  the  French  rule  is  largely  historical  and  is 
to  be  found  in  the  great  desire  at  the  time  of  the 
revolution  to  free  the  administration  from  the  control 
of  the  ordinary  courts,  which  had  shown  themselves 
too  anxious  to  protect  vested  rights  and  hamper 
the  administration  in  the  carrying  on  of  the  necessary 
reforms.3  In  both  France  and  Germany  the  general 
rules  as  to  the  responsibility  of  the  government  before 
the  courts  which  have  been  mentioned  are  sometimes 
modified  by  special  statutes.  Thus  in  France  the 
responsibility  of  the  government  for  damages  resulting 
from  the  carelessness  of  the  agents  of  the  postal  and 
telegraph  services  is  very  much  limited  and  the  action 
is  to  be  brought  before  the  ordinary  courts."^  In 
Prussia  the  government  is  made  responsible  for  the 
negligence  of  its  registrars  of  deeds  and  mortgages,  not- 
withstanding the  fact  that  the  registration  of  land  titles 

^  Ducrocq,  loc.  cit. 

'  Von  Ronne,  loc.  cit.  ;  Bomhak,  loc.  cit. 

'  Infra,  II.,  p.  218. 

■*  L.,  Jan.  25,  1873,  art.  4. 


CONTROL  OF  THE  CIVIL  COURTS.  163 

is  evidently  a  public  legal  rather  than  a  corporate  or 
private  legal  act.^ 

//. — Suits  for  damages  against  officers, 

1.  The  English  rule, — According  to  the  original 
German  law  all  officers  of  the  government  were  sub- 
ject to  the  law  of  the  land  in  the  same  way  as  ordinary 
individuals,  and  were  liable  to  be  held  responsible  by 
the  courts  for  their  actions  committed  without  authority 
of  law,  whenever  such  actions  caused  damage  to  indi- 
viduals.^ This  principle  seems  to  have  been  retained 
in  England,  its  retention  being  undoubtedly  aided  by 
the  character  of  the  administrative  system  which  was 
early  adopted  there.  The  English  system  of  adminis- 
tration was  of  that  kind  which  has  been  denominated 
the  self-government  system,  i,  e.  a  system  in  which  the 
officers  were  absolutely  non-professional  in  character. 
While  in  theory  and  on  account  of  the  early  Norman 
centralization  these  officers  were  the  officers  of  the 
Crown,  still  in  later  times  they  were  not  actually  in 
close  enough  connection  with  the  Crown  nor  in  suffi- 
cient subordination  to  it  to  be  invested  with  any  of  the 
attributes  of  irresponsibility  which  the  law  assigned  to 
the  Crown.  On  the  contrary  they  were  regarded  simply 
as  ordinary  citizens,  who  for  the  time  being  were  serving 
the  government  by  the  discharge  of  public  functions  and 
who  after  their  time  of  service  had  expired  would  fall 
back  again  into  the  ranks  of  private  citizens.  The  same 
rules  were  applied  to  them  which  were  applied  to 
ordinary  citizens.  They  were  not  exempted  in  any 
way  from  the  observance  of  the  law  on  account  of  their 
official  position.    If  during  the  period  of  their  discharge 

*  L.,  May  5,  1872,  sec.  29.  '  Loening,  op.  cit.,  771-784. 


i64      CONTROL  OVER  THE  ADMINISTRATION. 

of  public  functions  they  committed  an  act  not  justified 
by  the  law  such  act  was  regarded  as  coram  nonjudice, 
i,  e.  as  an  act  of  a  purely  private  and  personal  charac- 
ter for  which,  like  any  citizen,  they  could  be  held  re- 
sponsible before  the  ordinary  courts/  The  important 
question  to  be  decided  by  the  courts  whenever  the  act 
of  an  officer  came  up  before  them  was  therefore  the 
question  of  jurisdiction.  Did  the  law  give  the  officer 
the  power  to  act  as  he  had  acted  in  the  particular  case 
or  not  ? 

It  will  at  once  be  seen  what  an  enormous  power  the 
courts  had  and  have  through  the  adoption  of  this 
principle  over  the  acts  of  the  administration.  Any 
act  of  any  officer  may  give  rise  to  a  complaint  which 
the  courts  have  to  decide.  In  deciding  these  com- 
plaints the  courts  delimit  the  sphere  of  administrative 
competence  in  all  its  details  in  that  they  settle  what  is 
the  jurisdiction  of  all  officers  of  the  government. 
What  the  actual  extent  of  this  control  shall  be,  de- 
pends, however,  upon  the  attitude  of  the  courts.  They 
may  pass  upon  every  act  of  every  officer  or  they  may 
limit  their  power  by  their  decisions  in  the  interest  of 
an  efficient  administration,  may  leave  something  to  ad- 
ministrative discretion  which  they  will  not  attempt  to 
control.  This  has  been  the  tendency  of  their  decisions 
both  in  England  and  the  United  States.  In  both 
countries  they  have  in  the  first  place  made  it  practi- 
cally impossible  to  sue  in  damages  the  most  important 
officers  of  state,  i.  e,  the  heads  of  executive  departments 
in  both  countries  and  in  the  United  States,  also  the 
President  and  the  governors.     Mr.  Todd  says  ^ : 

*  Mechem,  op.  cit. ,  400  et  seq. 

*  Parliamentary  Government^  etc.,  2d  Ed.,  I.,  494,  495.    , 


CONTROL  OF  THE  CIVIL  COURTS.  165 

It  may  be  stated  as  a  general  principle,  that  in  assuming  on 
behalf  of  the  Crown  a  personal  responsibility  for  all  acts  of  the 
government,  ministers  are  privileged  to  share,  with  the  Crown,  in 
a  personal  immunity  from  vexatious  proceedings  by  ordinary 
process  of  law,  for  alleged  acts  of  oppression,  or  illegality  in  the 
discharge  of  their  official  acts.  .  .  .  Whether  the  alleged 
liability  arises  out  of  contract  or  out  of  tort,  or  from  any  matter 
of  private  individual  complaint  against  a  minister  of  the  Crown, 
for  acts  done  in  his  official  capacity,  the  ordinary  tribunals  of 
justice  will  afford  him  special  immunity  and  protection. 

This  does  not  mean  that  in  no  possible  case  can  a 
suit  be  brought  against  a  minister,  but  only  that  the 
courts  are  very  careful  not  to  extend  their  control  so 
as  to  hamper  the  administration  of  public  business  by 
the  ministers.  In  the  United  States  the  rule  is  practi- 
cally the  same.  Up  to  1870  there  was  only  one  action 
brought  against  the  head  of  a  United  States  executive 
department/  and  since  that  time  I  know  of  no  other  case.^ 
This  case,  which  is  our  only  precedent,  was  the  case  of 
Stokes  V.  Kendall  ^  and  was  decided  adversely  to  the 
plaintiff.  It  is  extremely  interesting  as  showing  dis- 
tinctly the  attitude  of  the  courts  towards  this  class  of 
cases.  It  was  preceded  by  the  case  of  Kendall  v.  The 
United  StateSy^  in  which  the  same  plaintiff  as  in  the 
case  of  Stokes  v,  Kendall,  had  endeavored  to  obtain  a 
ma/ndamus  against  the  postmaster-general.  The  Su- 
preme Court  there  decided  that  a  given  act  was.  not 
discretionary  but  ministerial  in  character,  and  therefore 
that  a  mandamus  might  issue ;  and  seven  years  later, 
when  the  same  plaintiff  brought  a  suit  for  damages 
against  the  postmaster-general,  the  same  Supreme  Court 
held  that  this  same  act,  which  it  had  declared  in  the 

^  See  6  Court  of  Claims  Reports,  177,  180.  '3  How.,  87. 

'  Cf,  Mechem,  op.  cit.^  sec.  608.  *  12  Peters,  524. 


i66      CONTROL  OVER  THE  ADMINISTRATION. 

other  case  to  be  ministerial,  was,  when  a  suit  for  damages 
resulting  from  it  was  brought,  a  discretionary  act  and 
therefore  that  the  postmaster-general  could  not  be  held 
liable  for  damages.  The  immunity  thus  granted  to  the 
highest  officers  of  state  does  not  really  diminish  the 
control  possessed  by  the  courts  over  the  administration 
so  much  as  at  first  sight  it  might  seem.  For  these  high 
officers  must  come  into  relations  with  individuals  gen- 
erally through  the  medium  of  their  subordinates,  and 
according  to  the  English  and  American  system  such 
subordinates  are  generally  responsible  for  their  actions 
and  are  not  protected  by  the  fact  that  they  have  acted 
according  to  instructions  from  their  superiors.^ 

A  second  limitation  which  the  courts  have  placed 
upon  their  control  over  the  action  of  the  administration, 
through  their  power  to  delimit  its  sphere  of  competence, 
is  to  be  found  in  the  rule,  that  purely  ministerial  offi- 
cers will  not  be  held  responsible  for  damages  where 
they  have  followed  instructions  which  are  legal  on 
their  face  and  contain  nothing  which  will  apprise  the 
subordinate  that  they  have  been  issued  illegally,  and 
are  not  within  the  jurisdiction  of  the  superior  who 
issued  them.^  The  weight  of  authority  seems  to  be 
further  in  favor  of  the  rule  that  a  ministerial  officer  is 
relieved  from  all  responsibility  for  the  execution  of 
orders  fair  on  their  face,  even  if  he  is  satisfied  that 
there  are  illegalities  lying  back  of  them.^  The  Eng- 
lish law  has  gone  further  than  the  law  of  the  United 

^  Tracy  v.  Swartout,  lo  Peters,  80. 

^  Savacool  v.  Boughton,  5  Wendell,  N.  Y.,  170;  Erskine  v.  Hohnbach,  14 
Wallace,  613,  616 ;  Cooley  on  Taxation,  2d  Ed.,  797,  and  cases  cited. 

"^  Ibid.,  798,  citing  Webber  V.  Gay,  24  Wendell,  485  ;  Wilmarth  v.  Burt,  7 
Metcalf,  257  ;  Watson  v.  Watson,  9  Conn.,  140  ;  Wall  v.  Trumbull,  16  Mich., 
228  ;  Cunningham  v.  Mitchell,  67  Pa.  St.  ;  see  also  Underwood  v.  Robinson, 
lo6  Mass.,  296. 


CONTROL  OF  THE  CIVIL  COURTS.  167 

States  and  lias  offered  to  officers,  who  are  not  minis- 
terial in  character,  quite  a  large  immunity  from  suits 
at  the  hands  of  individuals  by  making  their  defence 
very  much  easier.* 

The  responsibility  of  officers  for  damages  before  the 
courts  is  in  neither  the  English  nor  the  American  law 
confined  to  the  cases  in  which  they  have  acted  out  of 
their  jurisdiction.  In  many  cases  officers  may  be  held 
responsible  for  damages  arising  from  the  non-perform- 
ance or  negligent  performance  of  duties  within  their 
jurisdiction,  or  from  bad  faith.  Here  the  courts  have 
been  guided  in  their  formulation  of  the  rules  of  their 
control  over  officers,  by  the  character  both  of  the  offi- 
cer and  of  the  duties  which  he  has  to  perform  and 
which  the  court  undertakes  to  control.  Officers  are 
for  this  purpose  divided  by  the  courts  into  judicial, 
legislative,  and  executive  officers.  In  addition  to  these 
three  classes  of  officers  there  is  a  fourth  class  of  officers 
whose  development  has  taken  place  during  this  cen- 
tury and  whose  duties  partake  of  the  characteristics  of 
those  of  the  three  other  classes  of  officers.  These  offi- 
cers are  called  administrative  officers.  Such  are  the 
American  supervisor  and  county  commissioner  and  the 
English  county  councillor.  Of  these  various  classes  of 
officers  it  may  be  said,  in  the  first  place,  that  purely  ju- 
dicial officers,  i.  e.  officers  that  hold  courts  and  decide 
cases  of  criminal  and  private  law,  and  legislative  offi- 
cers will  not  be  held  civilly  responsible  for  damages,  no 
matter  how  gross  their  negligence  may  be,  nor  what 
may  be  the  character  of  the  act  giving  rise  to  the 

^  See  43  Geo.,  II.  c.  44,  sec.  6,  cited  in  Gneist,  Das  Englische  Verwaltungs- 
recht,  1884,  378.  This  provides  that  the  justices  of  the  peace  and  their  sub- 
ordinates shall  be  responsible  only  for  nominal  damages  except  when  they  have 
acted  out  of  malice  and  without  reasonable  cause. 


i68      CONTROL  OVER  THE  ADMINISTRATION. 

damages,  provided  it  is  within  their  jurisdiction.^  The 
only  possible  exceptions  to  this  rule  are  to  be  found  in 
the  case  of  the  ministerial  acts  of  §"Ma^s^judicial  and 
g'wi^^-legislative  officers,  when  such  officers  act  quoad 
hoc  as  administrative  officers.'^  The  responsibility  of 
executive  and  administrative  officers  depends,  however, 
largely  on  the  character  of  the  act  which  has  caused 
the  damage.  If  the  duty,  in  the  performance  of  which 
the  act  causing  the  damage  was  done,  is  discretionary 
in  character,  the  general  rule  is  that  executive  and  ad- 
ministrative officers  may  not  be  made  responsible  since 
the  courts  do  not  like  to  interfere  with  the  discretion 
of  the  administration.  When,  however,  the  duty  is 
purely  ministerial  such  officers  may  be  held  responsible 
by  the  courts  for  their  negligence  or  mal-performance 
of  such  duty.     As  one  judge  says  ^ : 

The  civil  remedy  for  misconduct  in  office  ,  .  »  depends 
exclusively  upon  the  nature  of  the  duty  which  has  been  violated. 
Where  that  is  absolute,  certain,  and  imperative,  and  every  minis- 
terial duty  is  so,  the  delinquent  officer  is  bound  to  make  full  re- 
dress to  every  person  who  has  suffered  by  such  delinquency. 
Duties  which  are  purely  ministerial  in  their  nature  are  sometimes 
cast  upon  officers  whose  chief  functions  are  judicial.  Where  this 
occurs  the  officer,  for  most  purposes  a  judge,  is  still  civilly  respon- 
sible for  such  misconduct.  But  where  the  duty  alleged  to  have 
been  violated  is  purely  judicial  a  different  rule  prevails  ;  for  no 
action  lies  in  any  case  for  misconduct  or  delinquency,  however 
gross,  in  the  performance  of  judicial  duties.  And  although  the 
officer  may  not  in  strictness  be  a  judge,  still  if  his  powers  are  dis- 
cretionary to  be  exercised  or  withheld  according  to  his  own  view 
of  what  is  proper,  they  are  judicial  and  he  is  exempt  from  all 
responsibility  by  action  for  the  motives  which  influence  him  and 
the  manner  in  which  such  duties  are  performed. 

^  Mechem,  op.  cit.,  sees.  619,  644,  with  cases  cited. 

'  Ibid.,  sees.  635,  643,  647,  and  cases  cited. 

*See  Wilson  v.  The  Mayor,  i  Denio,  N.  Y.,  595,  599. 


CONTROL  OF  THE  CIVIL  COURTS.  169 

There  is,  however,  in  the  United  States  a  tendency 
in  the  decisions  to  relax  the  strictness  of  this  rule  in  the 
case  of  administrative  officers,  officers  who,  while  not 
holding  regular  courts,  exercise  what  are  called  quaai- 
judicial  functions,  so  as  to  hold  them  responsible  for  bad 
faith  and  dishonest  purposes  notwithstanding  the  fact 
of  the  ^'was^judicial  and  discretionary  character  of  the 
duties  which  they  perform.^ 

In  respect  to  such  cases,  [says  Judge  Cooley]  though  they 
seem  to  be  out  of  harmony  with  the  general  rule.  .  .  .  and 
the  reasons  on  which  it  rests,  yet  we  may  perhaps  safely  concede 
that  there  are  various  duties  lying  along  the  borders  between 
those  of  a  ministerial  and  those  of  a  judicial  nature  which  are 
usually  entrusted  to  inferior  officers  and  in  the  performance  of 
which  it  is  highly  important  that  they  be  kept  as  closely  as  possi- 
ble within  strict  rules.  If  courts  lean  against  recognizing  in 
them  full  discretionary  powers  and  hold  them  strictly  within  the 
limits  of  good  faith  it  is  probably  a  leaning  that  in  most  cases 
will  be  found  to  harmonize  with  public  policy." 

2.  The  Roman  rule. — While  the  English  law,  basing 
itself  on  the  old  German  principle  of  the  responsibility 
of  all  persons  to  the  courts  for  the  damages  they  com- 
mitted unlawfully,  gave  the  courts  power  to  mulct 
officers  in  damages  where  their  acts  had  been  contrary 
to  the  law  and  in  excess  of  their  jurisdiction;  the 
E-oman  law,  starting  out  from  the  point  of  view  of  the 
government  rather  than  from  that  of  the  individual, 
provided,  in  the  interest  of  governmental  efficiency, 
that  the  officers  of  the  government  could,  during  their 
term  of  office,  be  brought  to  account  and  made  respon- 
sible for  damages    only   with    the   consent    of   their 

^  Cooley  on  Torts,  411. 

^  Ibid.,  413  ;  see  also  Pike  v.  Megoun,  44  Mo.,  491. 


17©      CONTROL  OVER  THE  ADMINISTRATION. 

superior  officer.*  The  German  principle  of  the  responsi- 
bility of  officers  was  at  first  adopted  on  the  continent.^ 
Soon,  however,  with  the  introduction  of  the  Roman 
law,  came  the  Koman  principle  of  official  irresponsi- 
bility.^ In  the  Holy  Roman  Empire  the  powers  of  the 
imperial  courts  diminished  so  much  as  a  result  of  the 
decay  of  the  empire  that  it  was  impossible  to  enforce 
the  responsibility  of  the  various  territorial  lords,  to  the 
most  important  of  whom  a  legal  exemption  from  re- 
sponsibility to  the  imperial  courts  was  given  by  the 
grant  of  the  privilegiuTn  de  non  appellando.  The  re- 
sult was  that  at  the  time  of  the  Reformation  the  mon- 
archs  and  princes  on  the  continent  with  all  their  agents 
were  uncontrolled  by  the  courts,  which  no  longer  had 
the  power  to  hold  them  responsible  for  the  damages 
which  they  might  illegally  inflict  upon  individuals. 

The  reason  of  the  adoption  among  German  peoples 
of  this  rule  of  law  which  seems  so  regardless  of  private 
rights  is  to  be  found  in  the  needs  of  the  administration 
at  the  time  that  it  was  adopted.  The  struggle  with 
feudalism  was  at  its  height  and  it  was  the  private 
rights  of  the  feudal  lords,  or  what  they  chose  to  con- 
sider as  their  private  rights,  which  were  most  liable  to 
violation  on  the  part  of  the  princes  of  the  continent. 
Now  the  imperial  courts  in  Germany  and  the  royal 
courts  in  France  were  held  by  judges  who  were  inde- 
pendent in  tenure  over  against  the  Emperor,  any  given 
prince,  or  the  King — in  Germany  because  the  judges 
were  chosen  by  the  estates,  in  France  because  the 
judgeships  in  the  ordinary  courts   were  bought  and 

'  Mommsen,  Romisches  Staatsreckt,  2d  Ed.,  I.,  170,  629  ;  II.,  712. 
'  Loening,  Deutsches  Verwaltungsrecht,  771. 

^  Ibid.    Parey,  y  Verwaltungsrechty   I.,  4,  citing  De  Tocqueville,  VAncien 
Regime  et  la  Revolutions  chap.  4. 


CONTROL  OF  THE  CIVIL  COURTS.  171 

sold  and  treated  as  private  property.  The  retention  of 
the  principle  of  the  responsibility  of  the  royal  and 
princely  officers  to  the  ordinary  courts  would  therefore 
have  effectually  prevented  the  kings  and  princes  from 
destroying  the  feudal  system  with  all  its  abuses  and 
pretended  vested  rights  and  would  have  made  impos- 
sible the  development  of  the  national  state  upon  the 
continent.  In  England  the  condition  of  things  was 
quite  different.  There  the  officers  of  the  royal  courts 
were  the  paid  servants  of  the  King  and  subject  to  his 
disciplinary  power.^  They  did  not  possess  a  tenure 
independent  of  the  Crown  till  1701,  when  the  act  of  set 
tlement  provided  that  they  should  be  removed  only  on 
the  address  of  both  houses  of  Parliament.  The  desire 
of  the  absolute  monarchy  to  reduce  the  nobility  to 
submission  and  to  do  away  with  feudalism  was  thus 
the  cause  of  the  adoption  on  the  continent  of  the  Ro- 
man principle  that  the  officers  of  the  government  might 
be  sued  by  the  individual  only  after  the  consent  of 
their  superior  had  been  obtained.  In  France  this  con- 
sent was  to  be  given  by  the  Council  of  the  King  which, 
before  granting  such  consent,  determined  the  question 
of  jurisdiction,  i.  e,  whether  the  officer  had  acted  con- 
trary to  the  law ;  and  the  suits  had  to  be  brought  be- 
fore special  courts  over  whose  organisation  the  King 
had  full  power.^ 

The  effect  of  the  French  revolution  on  the  position 
of  governmental  officers  was  at  first  simply  to  increase 
their  irresponsibility.  Since  the  time  of  the  revolution 
the  position  of  officers  in  France  has  undergone  a  some- 
what  different   development  from  that  of  officers  in 

*  Infra,  II.,  p.  193, 

*  See  Laferriere,  La  yuridiction  Administrative^  I.,  584,  note  I. 


172      CONTROL  OVER  THE  ADMINISTRATION. 

Germany,  though  Germany  has  been  influenced  by 
what  has  been  done  in  France.  It  will  be  necessary 
therefore  to  treat  these  countries  separately. 

a.  Tlie  modification  of  the  Roman  rule  in  France. — 
The  desire  of  the  leaders  of  the  revolution  to  carry  on 
the  reform  work  of  the  monarchy  was  so  great  ^  and 
their  distrust  of  the  courts  on  account  of  their  attempts 
to  protect  the  privileged  classes  in  the  latter  days  of 
the  monarchy  was  so  widespread  ^  that  little  desire  was 
felt  of  subjecting  the  administration,  which  was  to 
carry  on  the  reforms  of  the  new  era  that  had  just 
dawned,  to  the  control  of  the  courts.  Accordingly  we 
find  incorporated  into  article  75  of  the  constitution  of 
the  22d  of  frimaire  an  VIII  (1800),  from  which  year 
date  almost  all  of  the  permanent  administrative  results 
of  the  revolution,  the  principle  which  had  come  down 
to  the  absolute  monarchy  from  the  Roman  law,  viz,^ 
that  no  individual  could  bring  suit  in  the  courts  against 
an  administrative  officer  until  the  Council  of  State,  an 
administrative  council,  had  decided  that  the  officer  had 
acted  outside  of  his  jurisdiction,  and  had  given  its  con- 
sent to  the  bringing  of  the  suit.  In  case  such  consent 
was  given  the  suit  was  to  be  brought  in  the  ordinary 
courts.  But  after  the  reforms  of  the  revolutionary 
period  had  been  completed  this  principle  had  out- 
lasted its  usefulness  and  remained  only  a  menace  to 
private  rights.  For  use  of  it  was  made  to  destroy 
almost  all  fear  in  the  minds  of  the  officers  of  the  ad- 
ministration that  they  would  suffer  pecuniary  loss  for 
violating  their  duties;  and  an  important  sanction  for 
administrative  integrity  was  lost.  Article  75  was 
deemed  by  some  of  the  best  French  public  lawyers  to 

^  See  supra,  I.,  p.  270.  *  See  infra,  II.,  p.  218. 


CONTROL  OF  THE  CIVIL  COURTS.  173 

be  unnecessary  for  tlie  maintenance  of  the  principle  of 
the  separation  of  powers  and  of  its  corollary,  the  inde- 
pendence of  the  administration,  which  are  deemed  so 
important  by  the  French  law/  As  a  result  of  the 
abuse  of  this  principle  by  the  government  of  the 
second  empire,  the  French  people  decided  to  tear  it 
out  of  their  public  law  root  and  branch.  Therefore 
after  the  overthrow  of  the  government  of  the  empire 
one  of  the  first  acts  of  the  new  government  of  the 
national  defence  was  to  repeal  article  75  and  all  pro- 
visions of  law  depending  upon  it  or  of  like  import." 
At  first  it  was  thought  that  this  gave  the  ordinary 
courts  the  power  to  entertain  suits  in  damages  against 
officers,  not  only  for  purely  personal  acts,  such  as  neg- 
ligence, but  also  for  acts  done  by  them  in  connection 
with  their  duties  but  outside  their  jurisdiction ;  that 
the  courts  had  as  a  result  of  the  repeal  of  article  75 
the  same  power  as  the  courts  in  the  United  States 
have  to  delimit  the  sphere  of  administrative  compe- 
tence. But  the  principles  of  the  separation  of  powers 
and  the  independence  of  the  administration  were  too 
firmly  imbedded  in  the  French  law  to  permit  of  their 
being  shaken  by  the  mere  repeal  of  the  necessity  of  ob- 
taining the  consent  of  the  Council  of  State  as  a  pre- 
requisite to  the  bringing  of  suits  against  the  officers  of 
the  government.  And  the  Tribunal  of  Conflicts,^  when 
called  upon  to  decide  what  was  the  effect  of  the  repeal 
of  article  75,  held  that  the  competence  of  the  courts 
was  not  enlarged  by  its  repeal  in  such  a  way  as  to  give 
them  the  power  to  decide  upon   the  legality  of  an 

^  Cf.  Dareste,  La  yusiice  Administrative  en  France^  520 ;  Aucoc,  op.  cit„ 
I.,  676. 

■2  Decree  of  Sept.  iq,  1870. 

*  As  to  the  nature  of  this  body,  see  infra,  II.,  p.  258. 


\ 


174      CONTROL  OVER  THE  ADMINISTRATION, 

act  of  an  administrative  officer,  since  such  a  construc- 
tion would  practically  destroy  the  independence  of 
the  administration/  That  is  the  ordinary  courts  are 
not  yet  competent  to  determine  the  jurisdiction  of  an 
administrative  officer.  They  may,  however,  mulct  an 
officer  in  damages  where  he  has  done  an  act  of  a  purely 
personal  character  clearly  out  of  his  jurisdiction,  by 
which  an  individual  has  suffered.  Of  course  the  courts 
have  in  the  first  instance  to  pass  upon  the  question  of 
jurisdiction,  but  if  they  make  any  attempt  to  encroach 
upon  the  sphere  of  the  administration,  the  conflict,  as  it 
is  called,  is  raised  and  the  case  is  removed  into  the 
Tribunal  of  Conflicts,  which  thus  has  the  power  of 
preventing  the  ordinary  courts  from  making  such  use 
of  their  power  to  hold  an  officer  responsible  in  damages 
for  his  purely  personal  acts,  as  to  decide  the  question 
of  the  legality  of  administrative  acts.^  The  exact 
powers  of  the  French  courts  may  probably  be  best 
explained  by  a  citation  of  several  cases.  It  has  been 
held  that,  when  an  officer  has  clearly  gone  out  of  his 
way  and  has  slandered  another  person,  even  though 
the  slander  was  committed  by  the  officer  while  in 
the  discharge  of  his  functions ;  or  when  he  has  been 
negligent  in  the  discharge  of  his  duties  ;  or  when 
he  has  been  guilty  of  a  clear  abuse  of  power,  he 
may  be  held  responsible  by  the  ordinary  courts  in 
damages.  In  accordance  with  these  principles  a  com- 
missary of  police  was  declared  liable  for  slander  who 
had  in  open  court  addressed  a  former  magistrate  and 
said  that  the  court  was  extremely  fortunate  in  being 
rid  of  such  a  magistrate  ;  an  engineer  who  made  mis- 
takes in  his  calculations  with  the  result  that  the  con- 

*  Arrit  2tjuillet,  1873,  affaire  Pile'tier.  *  Infra,  II.,  p.  259. 


CONTROL  OF  THE  CIVIL  COURTS.  175 

struction  which  he  was  erecting  fell  down  and  injured 
several  persons,  was  held  responsible  for  the  damages 
which  his  negligence  caused  ;  an  officer  who,  to  protect 
a  building  of  the  state  from  the  nuisance  of  stray  dogs, 
deliberately  enticed  a  dog  to  come  near  it  and  killed  it 
by  giving  it  poisoned  meat  was  held  responsible  for 
the  damage  he  caused.  On  the  other  hand  a  prefect 
w^ho  shut  up  a  factory  while  acting  in  accordance  with 
instructions  issued  by  one  of  the  ministers  in  order  to 
execute  a  law,  could  not  be  held  responsible  before  the 
ordinary  courts  even  though  his  act  was  not  legal.  The 
difference  between  these  cases  will  at  once  be  seen, 
though  it  is  impossible  to  state  it  with  the  exactness  of 
a  mathematical  formula.^ 

It  will  be  noticed  that  the  French  rule  as  to  the  re- 
sponsibility of  officials  before  the  courts  for  damages 
caused  by  their  illegal  acts  is  at  the  same  time 
narrower  and  broader  than  the  English  and  American 
rule.  It  is  narrower  in  that  the  ordinary  courts  are 
not  allowed  to  decide  finally  the  question  of  the  juris- 
diction of  the  administration  which  is  so  important 
with  us ;  it  is  broader  in  that  any  purely  personal  act 
of  the  officer  may  be  a  ground  for  damages  whether  it 
was  done  in  the  performance  of  a  discretionary  duty 
or  a  ministerial  duty.  • 

A  word  must  be  said  as  to  the  position  of  the  ministers. 
It  seems  to  be  the  opinion  of  the  best  writers  that  they 
occupy  a  more  protected  position  than  do  other  officers. 
The  same  rule  applies  to  them  as  to  other  officers  so 
far  as  regards  the  acts  which  cannot  be  considered  as 
purely  personal  in  character.  The  courts  may  not  de- 
limit the  sphere  of  their  competence  or  determine  their 

*  Laferri^re,  La  yuridiction  Administrative,  I.,  595,  et  seq. 


L 


176     CONTROL  OVER  THE  ADMINISTRATION. 

jurisdiction.  But,  further,  tlie  principle  of  parliament- 
ary responsibility  is  believed  to  cover  in  great  measure 
their  purely  personal  acts,  for  which  they  may  be  held 
responsible  by  the  courts,  only  with  the  consent  of  the 
house  of  the  legislature  to  which  has  been  given  by 
the  constitution  the  right  of  impeachment/ 

b.  Modifications  of  the  Roman  rule  in  Germany, — 
After  the  breaking  up  of  the  empire  in  1806  the  only 
judicial  control  that  could  in  the  nature  of  things  be 
exercised  over  the  officers  of  the  government  was  to  be 
exercised  by  the  courts  of  the  different  states,  which 
came  into  being  as  a  result  of  the  dissolution  of  the 
empire.  These  courts  were  held  by  judges  who,  owing 
to  the  permanent  tenure  of  all  the  officers  of  the  gov- 
ernment, had  a  practical  independence  of  the  adminis- 
tration. The  old  German  rule  as  to  the  responsibility 
of  the  officers  of  the  administration  to  the  courts  '^  was 
felt  to  be  inconsistent  with  the  needs  of  an  administra- 
tion able  to  cope  with  the  problems  presented  in  this 
century.  It  was  feared  that  the  administration  would 
be  unable  to  perform  its  work.  Therefore  the  old 
Roman  principle  was  reintroduced  into  Germany,  or  at 
any  rate  into  Prussia,  which  may  be  taken  as  a  type, 
and  it  was  provided  that  no  individual  might  sue  an 
officer  of  the  administration  before  the  consent  of  an 
administrative  body  called  a  competence  court  had  been 
given.^  As  in  France  the  responsibility  of  officers  for 
damages  was  not  in  theory  destroyed  but  the  bring- 

^  Laferri^re,  La  yuridicHon  Administrative,  I.,  6io. 

^  This  was,  it  will  be  remembered,  that  they  were  responsible  for  damages 
resulting  from  every  violation  of  their  duties  and  for  negligence  in  their  dis- 
charge as  well  as  for  the  positive  overstepping  of  their  jurisdiction.  (Gneist, 
Das  Englische  Verwaltungsrecht,  1884,  I.,  379,  note.)  This  rule  resulted  in  a 
wider  responsibility  than  that  asserted  by  the  English  rule,  which  relieved  officers 
from  responsibility  for  negligence  in  the  performance  of  a  discretionary  act  within 
their  jurisdiction.  ^  Prussian  Law,  Feb.  13,  1854. 


CONTROL  OF  THE  CIVIL  COURTS.  177 

ing  of  a  suit  was  simply  made  more  difficult.  But,  as 
in  France,  the  way  in  which  the  law  was  applied  did 
not  give  satisfaction ;  and  when  the  present  empire  was 
founded  the  attempt  was  made  to  do  away  with  the  evils 
which  experience  had  shown  were  connected  with  the 
adoption  of  such  a  method  of  protecting  the  independ- 
ence of  the  administration.  The  law  of  Jan.  27,  1877, 
which  organized  the  imperial  judicial  system,  provided 
that  the  body  whose  consent  was  necessary  before  the 
suit  could  be  brought,  should  be  judicial  in  character, 
i,  e.,  either  the  highest  administrative  court,  if  there 
were  one  in  the  particular  member  of  the  empire,  or  if 
there  were  none,  then  the  imperial  court  at  Leipsic. 
In  other  words  the  preliminary  question  of  the  juris- 
diction of  the  officer  is  to  be  decided  by  a  body  judicial 
in  character  and  completely  independent  of  the  admin- 
istration. The  result  of  this  development  is  that  the 
responsibility  of  German  officials  to  individuals  for  the 
damages  they  may  have  committed  either  through  a 
violation  of  the  law  or  through  their  negligent  action 
is  broader  than  in  any  other  of  the  countries  whose  law 
is  being  considered.  The  old  Grerman  principle  has, 
notwithstanding  the  temporary  adoption  of  the  princi- 
ples of  the  E-oman  law,  retained  a  greater  influence  in 
the  land  of  its  birth  than  in  any  of  the  other  countries ; 
and  this  method  of  judicial  control  over  the  administra- 
tion is  really  the  most  important  means  by  which  the 
ordinary  courts  may  force  administrative  officers  to 
obey  the  law  and  act  efficiently  and  justly.^  It  is,  how- 
ever, to  be  noticed  that  on  account  of  the  separate  de- 
cision of  the  preliminary  question  of  jurisdiction  the 
exercise  of  this  control  of  the  civil  courts  is  more 
difficult  than  in  either  England  or  the  United  States. 

^  Cf.  Bornhak,  Preussisches  Verwaltungsrecht,  II.,  42,  et  seq. 


CHAPTER  III. 

CONTROL   OF   THE    CRIMINAL    COURTS. 
/. — Power  of  the  police  courts, 

.  The  control  which  the  criminal  courts  may  exercise 
over  the  administration  is  exercised  in  two  ways.  In 
the  first  place  these  courts  may  be  allowed,  and  in 
most  systems  of  administration  are  allowed,  to  decide 
actions  brought  by  the  administration  against  individ- 
uals, either  for  violation  of  those  rules  of  administrative 
law  which  have  been  put  into  the  form  of  simple  abso- 
lute unconditional  commands,  including  the  ordinances 
of  the  administrative  authorities,  and  whose  violation 
has  been  by  law  made  punishable  criminally,  or  for 
unlawful  resistance  to  officers  discharging  their  duties. 
In  all  such  cases  the  criminal  courts  have  the  right  to 
refuse  to  punish  the  person  prosecuted,  on  the  ground 
that  the  administration  has  exceeded  its  powers  and 
has  acted  without  jurisdiction.  They  thus  delimit  the 
sphere  of  administrative  action  and  competence  and 
force  the  administration  to  keep  within  the  bounds  set 
by  law.  The  law  of  all  countries  is  in  theory  the  same 
in  this  respect.  But  in  England  and  the  United  States 
the  power  of  the  criminal  courts  is  rather  greater  than 
on  the  continent,  on  account  of  the  fact  that  so  many 
of  the  rules  of  the  administrative  law  of  those  countries 

178 


CONTROL  OF  THE  CRIMINAL  COURTS.       179 

have  been  put  into  the  form  of  simple  absolute  un- 
conditional commands. 

//. — Power  of  the  criminal  courts  to  punish  officials. 
Method  of  prosecution. 

The  second  way  in  which  the  control  of  the  criminal 
courts  is  exercised  over  the  administration  is  by  decid- 
ing criminal  prosecutions  brought  not  against  individuals 
but  against  officials  to  punish  them  for  the  criminal  vio- 
lation of  their  duties.  The  extent  and  efficacy  of  this 
method  of  control  depend,  in  the  first  place,  on  the  con- 
tent of  the  criminal  law,  i,  e.  on  the  extent  to  which  the 
violation  of  official  duty  is  punishable  criminally,  and,  in 
the  second  place,  on  the  method  of  prosecution.^  For 
while  the  content  of  the  criminal  law  may  be  such  as 
to  provide  for  a  large  control  over  the  administration, 
if  the  method  of  prosecution  give  the  administration  a 
large  discretion  as  to  when  the  control  shall  be  exer- 
cised,— ^if  the  courts  or  individuals  have  little  power  of 
initiating  and  carrying  on  a  prosecution  against  an 
officer — the  control  of  the  criminal  courts  may  amount 
virtually  to  nothing. 

There  are  two  methods  of  conducting  prosecutions, 
the  one  through  a  private  prosecutor,  the  other  through 
a  public  prosecutor.  So  far  as  the  control  of  the  criminal 
courts  aims  at  the  protection  of  private  rights  the 
system  of  private  prosecution  will  undoubtedly  produce 
the  best  results ;  so  far  as  that  control  aims  at  the  effi- 
ciency of  the  administration,  as  it  must  to  a  certain 
extent  in  all  countries  and  as  it  does  particularly  in  the 
United  States,  the  system  of  public  prosecution  is 
capable  of  greater  efficiency,  since  it  is  certain  that 

'  For  the  content  of  the  criminal  law  see  supra,  II.,  p.  79. 


i8o     CONTROL  OVER  THE  ADMINISTRATION. 

private  prosecutors  usually  initiate  prosecutions  only  in 
those  cases  where  their  private  rights  have  been  violated. 
1.  Private  prosecutor, — As  the  English  system  of 
criminal  procedure  was  formed  with  the  special  pur- 
pose of  offering  protection  to  private  rights,  it  is  only 
natural  that  we  should  find  that  it  has  always  made 
provision  for  a  private  prosecutor  and,  indeed,  has  mainly 
relied  on  this  method  of  prosecution.  Even  the  law 
which  within  quite  recent  years  has  made  provision 
for  public  prosecutors  ^  still  permits  the  private  prose- 
cutor also  to  act.  It  guarantees  no  monopoly  of  the 
power  of  prosecution  to  the  administration.  In  order, 
however,  to  ensure  the  bringing  of  prosecutions  the 
English  law  has  always  regarded  the  power  of  prose- 
cution, which  was  guaranteed  by  the  system  to  indi- 
viduals, as  a  duty  which  the  courts  could  enforce  by 
binding  over  the  individual  complainant  to  prosecute. 
The  action  of  the  public  prosecutor  in  England  is  simply 
subsidiary  and  is  generally  made  use  of  for  those  cases 
where  the  incentive  to  private  prosecution  is  not  strong. 
The  usual  method  of  prosecution  is  complaint  of  the 
individual  to  a  committing  magistrate  who  makes  a 
preliminary  examination  of  the  prisoner  and  sends  the 
case  up  to  the  grand  jury.  This  body  then  proceeds 
by  indictment.  It  is  not,  however,  confined  in  its 
action  to  such  cases,  but  may  proceed  of  its  own  motion 
in  regard  to  matters  of  which  it  has  personal  knowl- 
edge. Sometimes  also  it  is  proper  for  individuals  to 
make  their  complaint  direct  to  the  grand  jury,  but  in 
some  instances  in  the  United  States  this  has  been  held 
to  be  improper.^     Public  prosecutors  are  permitted  to 

*  The  Director  of  Prosecutions  Act  of  1879,  42  and  43  Vict.,  c.  22. 

•  Thus  cf.  McCuUough  v.  Commonwealth,  67  Pa.  St.  30. 


CONTROL  OF  THE  CRIMINAL  COURTS.       i8i 

proceed  of  their  own  motion  by  means  of  criminal 
information.  This  power  is,  however,  made  use  of 
against  officers  only  in  case  they  have  acted  from  cor- 
rupt motives,  or  have  been  guilty  of  manifest  acts  of 
oppression  and  vrilful  abuse  of  power.  This  power  is 
usually  exercised  by  the  officers  of  the  Crown  such  as 
the  attorney  general  or  the  solicitor  general,  and  not  so 
much  by  the  directors  of  public  prosecutions,  whose 
main  duty  is  to  conduct  the  prosecutions  after  they 
have  once  been  initiated.^  The  further  power 
is  given  to  the  public  prosecutors  to  quash  a  prose- 
cution by  entering  a  nolle  prosequi.  This  power 
does  not,  however,  put  the  control  of  prosecutions  into 
the  hands  of  public  prosecutors.  For  they  act  under 
the  control  of  Parliament  and  public  opinion  ;  and  the 
entering  of  a  nolle  prosequi  is  no  bar  to  another  in- 
dictment.^ 

2.  The  United  States  dist/rict  attorney, — The  basis 
of  the  American  system  of  prosecution  is  the  same.  It 
has,  however,  received  impoi*tant  modifications  owing 
to  the  very  general  introduction  of  public  prosecutors, 
i,  e.  the  district  attomies  or  similar  officers,  who  are 
to  be  found  in  nearly  all  the  commonwealths  as  well 
as  in  the  national  administration.  As  the  establish- 
ment of  this  office  was  due  very  largely  to  the  desire  to 
prevent  inconsiderate  prosecutions,  great  discretion  is 
given  by  the  decisions  of  the  courts  to  the  district  at- 
tornies  in  the  initiation  of  prosecutions,  although  a 
monopoly  of  such  power  is  not  given  to  them.  That 
is,  the  individual  is  still  permitted  to  make  his  com- 
plaint before  a  committing  magistrate,  when  the  grand 

'SeeGneist,  Das  Englische  Verwaltungsrecht,  1884,  383. 
'  Cf.  U.  S.  V.  Shoemaker,  2  McLean,  114. 


1 82     CONTROL  OVER  THE  ADMINISTRATION. 

Jury  will  act  in  very  much  tlie  same  way  as  in  the  old 
English  method.  Some  of  the  cases,  however,  would 
seem  to  indicate  that  the  individual  has  no  longer  the 
right  to  go  before  the  grand  jury  and  make  his  com- 
plaint directly  to  them.^  This  power  has  been  re- 
placed by  the  power  given  to  the  public  prosecutor  to 
present  cases  himself  to  the  grand  jury.  As  in  all 
cases  the  management  of  the  case  before  the  grand 
jury  is  largely  in  the  hands  of  the  public  prosecutor, 
the  result  is  that  for  the  punishment  of  almost  all 
crimes  which  the  officers  of  the  administration  may 
commit,  the  action  of  the  public  prosecutor  has  become 
a  practical  necessity.^  This  is  particularly  true  because 
of  the  fact  that  the  conduct  of  the  prosecution,  after  it 
has  once  been  initiated,  is  largely,  indeed  almost  en- 
tirely, in  the  hands  of  the  public  prosecutor.  Some  of 
the  cases  on  this  point  go  so  far  as  to  intimate  that  the 
participation  of  other  counsel  than  the  public  prosecu- 
tor in  a  prosecution  for  crime  is  absolutely  forbidden  ^ ; 
while  others  declare  that  though  other  counsel,  i,  e. 
counsel  representing  some  private  individual  interested, 
may  be  admitted,  their  admission  is  a  privilege  which 
may  be  granted  or  refused  by  the  district  attorney  and 
not  a  right  which  the  individual  may  demand  by  ap- 
plication to  the  courts.*  All  these  cases  are  decided  as 
a  result  of  the  application  of  the  principle  that  the 
prisoner  is  to  be  protected  from  malicious  prosecution 

'  McCullough  V.  Commonwealth,  67  Pa.  St.,  30  ;  Fout  v.  State,  3  Haywood, 
Tenn.,  98  ;  Commonwealth  v.  Simons,  7  Philadelphia,  167. 

^  Ibid.;  Peacock  v.  State,  42  Ind.,  393;  Hite  v.  State,  9  Yerger,  Tenn., 
198  ;  see  also  Wharton,  Criminal  Pleading  and  Practice,  sec.  354. 

'  See  People  V.  Hurst,  41  Mich.,  328. 

*  Commonwealth  v.  Williams,  2  Cushing,  Mass. ,  582  ;  Commonwealth  v. 
Knapp,  10  Pickering,  Mass.,  477  ;  Commonwealth  v.  King,  8  Gray,  Mass., 
501. 


CONTROL  OF  THE  CRIMINAL  COURTS.       183 

on  the  part  of  the  individual,  and  that,  therefore, 
the  public  prosecutor  has  a  monopoly  either  of  initi- 
ating or  of  conducting  the  prosecution.^  There  seems 
to  be  no  case  which  directly  answers  the  question 
whether  the  courts,  in  case  a  district  attorney  refused 
without  reason  to  bring  a  prosecution  against  an  of- 
ficer of  the  government,  might  appoint  an  attorney  to 
conduct  such  prosecution.  This  has,  however,  been 
provided  in  some  cases  by  statute.^  Thus  a  statute  in 
Pennsylvania  provides  that  if  the  district  attorney 
shall  neglect  or  refuse  to  prosecute  in  due  form  of  law 
any  criminal  charge  regularly  returned  to  him  or  to 
the  coui*t  of  the  proper  county  or  if,  in  case  of  the 
admission  of  the  counsel  of  a  private  prosecutor,  the 
district  attorney  shall  differ  with  him  as  to  the  conduct 
of  the  proceedings,  the  court  on  the  petition  of  the 
private  prosecutor  may  direct  the  private  counsel  of 
the  prosecutor  to  conduct  the  entire  proceeding.  Fur- 
ther it  is  to  be  noticed  that,  as  a  rule,  the  public 
prosecutors  have  the  right  to  quash  a  prosecution  by 
the  entering  of  a  nolle  prosequi.  Some  of  the  cases 
hold  that  the  action  of  the  public  prosecutor  in  so  do- 
ing is  subject  to  the  control  or  consent  of  the  court,^ 
but  most  of  the  cases  insist  upon  the  necessity  of  this 
consent  only  after  a  jury  has  been  empanelled,  their 
reason  being  to  protect  private  rights,  L  e,  the  rights 
of  the  prisoner.  For  as  had  been  said,  a  nolle  prose- 
qui is  no  bar  to  another  indictment.  They  seldom 
seem  to  require  the  consent  of  the  court  in  order  to 

^  See  also  Gonzales  v.  State,  26  Texas,  197,  which  seems  to  recognize  in  the 
courts  a  power  for  "special  reasons,"  which  are  not  indicated,  to  appoint 
counsel  for  the  prosecution  of  suits  ;  cf.  Wharton,  op.  cit.y  sec.  555. 

2  See  Pa.  L.,  March  12,  1868. 

3  State  V.  Moody,  69  N.  C,  529 ;  Stathaxn  v.  State,  41  Ga.,  507. 


i84     CONTROL  OVER  THE  ADMINISTRATION. 

prevent  the  public  prosecutor  from  rendering  an  in- 
dictment or  other  prosecution  nugatory.^  In  some 
cases,  however,  the  power  of  the  public  prosecutors  to 
enter  a  nolle  pi^oseqid  has  been  taken  away  altogether 
by  statute,  and  the  indictment  may  be  quashed  only 
as  a  result  of  the  action  of  the  court  on  a  motion  to 
dismiss  made  by  the  public  prosecutor.^ 

This  method  of  prosecution  tends  of  course  to  relax 
very  greatly  the  control  over  the  administration  exer- 
cised by  the  criminal  courts.  For  the  public  prosecutor, 
in  whose  hands  is  practically  the  power  both  to  initiate 
and  conduct  prosecutions  against  officers  of  the  adminis- 
tration, is,  whatever  be  the  method  of  organizing  the 
system,  in  more  or  less  close  affiliation  with  the  admin- 
istration and  is  liable  to  over-estimate  the  importance 
of  administrative  independence  even  to  the  detriment 
of  private  rights  and  in  some  cases  of  administrative 
efficiency.  We  have  had  in  our  administrative  his- 
tory too  many  instances  of  the  refusal  on  the  part  of 
the  district  attorney  to  proceed  with  the  prosecution 
of  public  officers,  or  of  such  negligence  on  his  part  in 
conducting  a  prosecution  which  he  has  been  forced  by 
public  opinion  to  initiate,  that  officers  guilty  of  official 
and  other  crimes  have  been  able  to  escape  responsibil- 
ity for  their  actions,  altogether.  The  "  pigeon-holing  " 
of  indictments  has  become  altogether  too  common  in 
the  case  of  officers  or  of  persons  in  close  relation  with 
the  administration.    The  danger  is  undoubtedly  greater 

^  See  U.  S.  V.  Shoemaker,  2  McLean,  114 ;  U.  S.  v.  Stowell,  2  Curtis  C.  C, 
153  ;  State  v.  I.  S.  S.,  I.  Tyler,  Vt.,  178  ;  Commonwealth  v.  Tuck,  20  Picker- 
ing, Mass.,  356;  Commonwealth  v.  Briggs,  7  Pickering,  716,  179  ;  Ex  parte 
Donaldson,  44  Mo.,  149  ;  State  v.  McKee,  i  Bailey,  651  ;  State  v.  Kreps,  8 
Alabama,  951. 

'  See  e.  g.  N.  Y.  Code  of  Criminal  Procedure,  sees.  668-671. 


CONTROL  OF  THE  CRIMINAL  COURTS.       185 

when  the  public  prosecutor  is  dependent  in  his  tenure 
of  office  and  in  his  action  upon  the  administration  than 
it  is  where  he  is  elected  by  the  people ;  but  even  in 
this  latter  case  his  party  affiliations  are  so  strong  as 
often  to  preclude  the  probability  of  an  energetic  prose- 
cution of  official  criminals.  One  way  of  organizing  the 
prosecuting  force,  which  would  remedy  these  defects, 
would  be  to  have  the  public  prosecutor  appointed  and 
dismissed  by  the  courts,  or  at  least  to  provide,  as  has 
been  done  in  Pennsylvania,  that,  in  case  of  the  neglect 
of  the  public  prosecutor,  the  courts  may  appoint  attor- 
nies  to  conduct  the  prosecution. 

In  the  system  of  public  prosecution  adopted  in  the 
national  administration  all  public  prosecutors  are 
appointed  by  the  President  with  the  consent  of  the 
Senate  and  dismissed  by  the  President  alone.  As  the 
President  is,  as  has  been  shown,^  the  head  of  the 
national  administration,  the  administration  has  it  in  its 
power  practically  to  prevent  the  efficient  conduct  of 
any  prosecution  against  any  officer  of  the  administra- 
tion. It  may  further  prevent  the  filing  of  any  informa- 
tion against  officers  of  the  administration,  though  it 
cannot  prevent  the  finding  of  an  indictment.  For  the 
Kevised  Statutes  provide  that  a  circuit  or  district 
judge  may  in  his  discretion  order  a  venire  facias  to 
issue,  by  which  a  grand  jury  will  be  summoned.  This 
body  may  then  find  an  indictment,^  which  it  will  be 
the  duty  of  the  district  attorney  to  prosecute.^  But  as 
the  district  attorney  commonly  has  charge  of  the  pro- 
ceedings before  the  grand  jury,  will  conduct  the  case 
after  it  has  been  initiated,  and  has  the  power  to  enter 

>  Supra,  I.,  p.  69.  •U.  S.  R.  S.,  sec.  810. 

*  Ibid.,  sec.  771. 


i86     CONTROL  OVER  THE  ADMINISTRATION. 

a  nolle 'prosequi  practically  in  his  discretion^  his  negli- 
gence or  unwillingness  to  act,  or  that  of  the  adminis- 
tration which  he  represents  and  upon  which  he  is 
dependent,  may  often  render  very  difficult,  if  not  abso- 
lutely impossible,  a  conviction  of  an  official  of  the 
national  administration  for  a  criminal  violation  of  his 
duty.  Finally  it  is  said  that  the  President  may  order 
the  entering  of  a  nolle  prosequi  at  any  stage  of  criminal 
proceedings.^  In  the  commonwealths,  however,  the 
public  prosecutors  are  usually  elected  by  the  people  of 
the  counties  and  the  danger  is  not  so  gre^t,  though 
even  here  it  is  a  real  one  on  account  of  the  party  affilia- 
tions of  the  public  prosecutors  which  must  necessarily 
have  a  great  influence  on  their  action. 

3.  Public  prosecutor,  —  While  'England  is  the 
home  of  private  prosecution,  which  also  lies  at  the 
basis  of  the  system  in  the  United  States,  France  is  the 
originator  of  the  modern  institution  of  public  prosecu- 
tion. Originally  founded  in  France  with  the  purpose 
of  merely  supplementing  the  activity  of  the  private 
prosecutor,  which  the  old  Teutonic  law  provided,  the 
office  of  public  prosecutor  has  in  France  completely 
replaced  the  private  prosecutor,  who  no  longer  exists. 
The  code  of  criminal  procedure  provides  ^  that  the  pub- 
^  lie  prosecutor  alone  has  the  right  to  initiate  criminal 
proceedings.  During  the  period  of  the  absolute 
monarchy  the  public  prosecutors  were  appointed  by 
the  King,  who  thus  had  in  his  hands  the  control  of  all 
prosecutions  against  officers  of  the  administration. 
After  the  revolution,  during  the  short  period  of  decen- 
tralization, the  least  important  of  these  public  prose- 

'  U.  S.  V.  Stowell,  2  Curtis,  C.  C,  153. 
*  5  Opinions  Att'y  Gen'l,  729.  '  Art.  i. 


CONTROL  OF  THE  CRIMINAL  COURTS.       187 

cutors  were  elected  by  the  people.  But  in  1800  *  the 
election  of  public  prosecutors  was  done  away  with, 
and  appointment  became  the  rule.  Now  all  public 
prosecutors,  with  the  exception  of  the  mayor,  who,  it 
will  be  remembered,  may  be  removed  by  the  President 
of  the  republic,  and  who  is  the  public  prosecutor  in 
the  most  unimportant  districts  for  police  oifences,  are 
appointed  and  removed  by  the  President  of  the 
republic.  They  all  act  under  the  direction  and 
control  of  the  minister  of  justice.  They  are  also  to  a 
small  extent  under  the  control  of  the  courts  to  which 
they  are  attached.  The  courts  may  thus  send  orders 
to  them,  supervise  their  acts,  and  see  that  these  are 
regular.  The  actual  disciplinary  power  which  the 
courts  have  over  them  would,  however,  seem  to  be 
quite  small.  Indeed  the  only  cases  in  which  the  law 
says  that  the  public  prosecutors  must  act,  seem  to  be 
where  the  complaining  parties  initiate  civil  proceedings 
against  officers  at  the  same  time  that  they  endeavor  to 
get  the  public  prosecutors  to  initiate  criminal  proceed- 
ings, as  may  be  done  under  the  French  law.  In  such 
cases  the  judges  must  send  on  the  criminal  complaint 
to  the  public  prosecutors  who,  it  is  said,  are  bound  to 
act.^  The  effect  of  such  a  method  of  prosecution  upon 
the  control  of  the  criminal  courts  over  the  administra- 
tion is  to  put  almost  completely  into  the  hands  of  the 
central  administration  the  decision  as  to  when  it  shall 
be  exercised.  The  control  of  the  criminal  courts  in 
France  over  the  administration  amounts  therefore  to 
very  little ;  in  time  of  political  excitement  it  would  be 
impossible  to  make  use  of  it  at  all. 

'  Constitution  of  22  frimaire,  a«  VIII,  art.  53. 

'  Block,  Dictionaire  de  la  Politiqtu^  II.,  317,  sub  verba  Ministhre public 


1 88     CONTROL  OVER  THE  ADMINISTRATION. 

The  old  German  method  of  criminal  prosecution 
gave  to  the  criminal  courts  an  almost  complete  control 
over  all  criminal  proceedings.  The  procedure  before 
the  courts  was  an  inquisitorial  procedure  as  a  rule, — a 
procedure  in  accordance  with  which  the  courts  were 
the  prosecutors  and  were  set  in  motion  by  the  com- 
plaint of  any  individual  who  had  been  injured  by  the 
commission  of  a  crime.  The  criminal  courts,  thus 
having  the  whole  matter  of  criminal  prosecutions  in 
their  hands,  and  being  in  their  tenure  practically  inde- 
pendent of  the  administration,  offered  to  the  individual 
as  complete  a  remedy  against  the  illegal  ai^a  criminal 
action  of  the  administration  as  could  well  be  desired 
or  devised.  The  position  of  the  criminal  courts  was 
so  strong  that  they  could,  and  indeed  more  than  once 
did  defy  the  prohibitions  of  the  executive  to  hear 
criminal  complaints  against  officers  of  the  administra- 
tion.^ In  Prussia,  however,  during  this  century  French 
institutions  were  copied  in  this  respect  as  in  so  many 
others.  Soon  after  the  revolution  of  1848  a  royal  or- 
dinance^ took  away  from  the  courts  all  power  of 
criminal  prosecution  and  gave  it  to  the  public  prose- 
cutors who  were  then  provided  and  who  were  placed 
completely  under  the  control  of  the  ministry.  This 
ordinance  thus  destroyed  all  responsibility  of  the  offi- 
cers of  the  administration  before  the  courts  for  criminal 
actions,  and  permitted  the  ministry  to  violate  with 
impunity  the  rights  of  individuals  by  allowing  officials 
to  go  scot  free  who  had  under  its  direction  violated 
the  law.  This  condition  of  things  was  aggravated  by 
the  law  of  Feb.  23,  1854,  which  did  so  much  to  weaken 
the  civil  responsibility  of  officials.^    This  law  provided 

'  Gneist,  Das  Englische  Verwaltungsrecht,  1884,  383,  note. 
«0f  date  Jan.  2,  1849.  '  Supra,  II.,  p.  176. 


CONTROL  OF  THE  CRIMINAL  COURTS.       189 

that  before  even  the  public  prosecutor  could  initiate 
criminal  proceedings  against  officers  of  the  administra- 
tion, the  competence  court  at  Berlin,  which  was  prac- 
tically under  the  control  of  the  ministry,  should  first 
decide  that  there  was  a  proper  case  for  criminal  prose- 
cution, a  "  zur  SPrafverfolgung  geeigneter  JFaEP  The 
abuse  which  was  made  of  this  power  was  so  marked — 
it  resulted  in  destroying  all  control  possessed  by  the 
criminal  courts  over  the  administration — that  after 
the  empire  was  established  it  was  provided  :  First,  that 
the  preliminary  decision  necessary  before  an  officer  of 
the  administration  can  be  prosecuted  criminally  ^  shall 
be  confined  to  the  question  whether  such  officer  has 
violated  his  duties,  and  shall  be  rendered  by  a  really 
independent  body  of  a  judicial  character,  i.  e,  either 
by  the  Imperial  Court  at  Leipsic  or  by  the  highest  ad- 
ministrative court,  if  there  is  any,  whose  members  must 
be  independent  in  tenure  of  the  administration ;  and 
second,  that,  while  the  public  prosecutors  are  still  in 
principle  to  retain  their  monopoly  of  criminal  prosecu- 
tion where  this  is  provided  by  local  statute,  still  in  case 
they  refuse  to  act,  the  courts  may  on  the  proposition 
of  an  interested  party  initiate  the  proceedings  and  ap- 
point an  attorney  to  conduct  them.^  The  result  is  that 
while  the  formalities  to  be  complied  with  before  a  suit 
may  be  brought  against  an  officer  of  the  administration, 
are  in  some  districts  rather  formidable,  the  courts  and 
not  the  administration  have  in  their  hands  the  initia- 
tion and  the  conduct  of  such  proceedings. 

*  It  is  to  be  noted  that  many  of  the  members  of  the  empire  do  not  require 
such  a  preliminary  decision,  though  Prussia  does. 

'  Code  of  Criminal  Procedure,  sees.  169-175  ;  Cf.  Gneist,  loc.  cit.  This 
seems  to  be  somewhat  the  same  method  which  was  adopted  in  Pennsylvania  by 
L.  March  12,  1868,  supra,  II.,  p.  183. 


CHAPTER  IV. 

THE    ADMINISTRATIVE     JURISDICTION    IN     ENGLAND     AND 
THE    UNITED    STATES. 

/. — Characteristics    of   the     administrative   jurisdiction    in 

general. 

The  direct  judicial  control  over  tlie  administration 
which  has  so  far  been  considered,  has  been  found  in 
the  remedies  offered  to  individuals  against  officers  to 
obtain  satisfaction  for  the  commission  of  an  illegal  act. 
It  has  been  seen  how  careful  the  law  in  most  countries 
is  to  limit  both  the  civil  and  the  criminal  responsibility 
of  officials  in  order  to  protect  them  from  vexatious 
suits.  It  often  requires  practically  an  absolute  over- 
stepping of  their  jurisdiction  or  corruption  where  they 
have  acted  within  it,  in  order  to  found  the  responsibil- 
ity, as  in  England  and  the  United  States,  or  where  it 
has  acknowledged  such  a  responsibility  in  a  wider 
form,  as  in  France  and  Germany,  it  has  been  very  care- 
ful to  make  sure  that  the  courts  will  make  moderate 
use  of  their  power  to  determine  the  question  of  juris- 
diction ;  in  all  cases  makes  it  much  more  difficult  to 
sue  officers  of  the  government  than  to  sue  ordinary 
private  persons ;  and  all  but  denies  any  responsibility 
of  the  government  for  the  tortious  acts  of  its  officers. 
But  even  were  this  method  of  judicial  control  more 
easily  exercised  than  it  is,  it  would  be  found  in  many 

190 


ADMINISTRATIVE  JURISDICTION,  191 

cases  to  be  ineffectual.  A  civil  suit  for  damages 
against  an  official  may  be  an  altogether  inadequate 
remedy,  because  damages  will  not  in  some  cases  be  an 
adequate  means  of  relief,  and  because,  even  if  they 
were,  the  official  sued  may  not  be  the  possessor  of 
enough  property  to  satisfy  a  judgment.  Again,  the 
successful  prosecution  of  a  criminal  suit  against  an 
officer  may  have  value  in  tempering  the  future  conduct 
of  officials  but  does  not  result  in  any  actual  improve- 
ment of  the  condition  of  the  individual  whose  rights 
have  been  violated.  In  both  cases  a  right  may  have 
been  violated  and  adequate  satisfaction  has  not  been 
made.  Therefore,  were  the  remedies  which  have  been 
mentioned  the  only  means  which  the  courts  had  to 
control  the  actions  of  the  administration  in  the  interest 
of  private  rights,  the  judicial  control  over  the  adminis- 
tration would  be  quite  incomplete.  Some  means  must 
be  provided  by  which  the  courts  may  directly  control 
the  acts  of  the  administration.  It  may  be  of  vital  im- 
portance to  the  individual  or  to  the  public  that  a  thing 
be  done  which  the  law  says  shall  be  done.  It  is  not 
just  to  tell  an  individual  that  he  must  wait  until  his 
right  has  been  violated  and  then  sue  the  proper  official 
for  damages,  or  even  prosecute  him  criminally.  The 
individual  desires  a  definite  thing  done  by  the  adminis- 
tration which  the  law  says  shall  be  done.  Again  it 
may  be  of  vital  importance  that  an  officer  be  prevented 
from  doing  an  act  which  he  threatens  to  do,  or  that 
a  decision  which  is  regarded  as  unfair  or  illegal  be 
reviewed  and  annulled  or  amended.  Here,  for  the 
same  reason  as  before,  it  is  not  right  to  force  the  indi- 
vidual to  rely  on  his  power  to  sue  the  officer  in  dam- 
ages or  prosecute  him  criminally. 


192     CONTROL  OVER  THE  ADMINISTRATION. 

In  all  these  cases,  if  individual  rights  are  to  be 
adequately  protected  against  the  administration,  some 
method  of  judicial  control  must  be  devised  in  addition 
to  those  already  mentioned.  Some  means  must  be 
offered  of  reaching  the  acts  and  not  the  persons  of  the 
officers  of  the  administration.  The  various  remedies 
which  the  law  offers  against  the  acts  of  the  administra- 
tion form  what  may  be  called  the  administrative  juris- 
diction. For  through  the  application  of  these  remedies 
the  courts  take  cognizance  and  jurisdiction  of  adminis- 
trative acts.  Such  a  jurisdiction  may  be  formed  in 
two  ways.  It  may  be  granted  to  the  ordinary  courts, 
or  special  courts  may  be  formed  for  its  exercise.  The 
former  method  is  that  which  has  been  adopted  in  Eng- 
land and  the  United  States.  The  latter  is  that  which 
has  been  adopted  very  generally  on  the  continent  of 
Europe. 

//. — History  of  the  English  method. 

1.  History  to  the  heginning  of  the  eighteenth  century. 
— The  English  administrative  jurisdiction,  whose  main 
principles  have  been  adopted  in  the  United  States,  is 
simply  an  outgrowth  of  the  original  system  of  adminis- 
trative control.  The  Norman  political  system  made 
no  distinction  between  governmental  authorities.  All 
powers  of  government  were  consolidated  in  the  hands 
of  the  Crown.  First  to  be  differentiated  was  the  legis- 
lative authority,  the  Parliament.  But  for  a  long  time 
after  the  differentiation  of  Parliament  there  was  almost 
no  legal  distinction  between  the  position  of  the  officers 
for  the  administration  of  justice  and  that  of  the  officers 
for  the  administration  of  government.  Indeed  most 
important  officers  discharged  functions  in  both  branches, 


ADMINISTRA  TIVE  JURISDICTION.  1 93 

and  all  alike  were  regarded  as  merely  the  servants  of 
the  Crown.  Some,  it  is  true,  were  engaged  mainly  in 
the  application  of  the  private  law,  others  were  engaged 
mainly  in  the  application  of  the  public  and  administra- 
tive law.  But  all  were  officers  of  the  Crown,  which 
directly  or  indirectly  could  remove  them  all  from  office 
and  could  dictate  to  them  what  should  be  the  decision 
of  the  cases  which  were  brought  before  them.*  To  the 
officers  of  one  of  the  courts,  viz.^  the  court  of  king's 
bench,  which  was  regarded  as  occupying  a  superior 
position  because  the  Crown  by  a  fiction  of  the  law  was 
supposed  always  to  be  present  in  it,'^  was  given  a  super- 
visory power  over  all  other  authorities.^  If  any  one 
was  aggrieved  by  an  act  of  a  subordinate  officer  of  the 
Crown  he  had  the  right  to  appeal  to  the  Crown,  who 
was  the  fountain  of  justice,^  and  such  an  appeal  went 
to  the  court  of  king's  bench.  At  first  it  seems  to 
have  gone  to  the  Curia  Regis  or  King's  Council,  before 
the  development  of  the  court  of  king's  bench.^  Indeed, 
after  the  development  of  the  king's  bench,  when  with 
the  usual  habits  of  judges  the  members  of  this  court 
became  very  technical  in  their  application  of  the  law, 
appeals  went  in  many  cases  directly  to  the  Crown  and 
were  attended  to  generally  by  the  chancellor  or  the 
council.  For  the  King  at  the  time  of  the  formation  of 
the  court  of  king's  bench  specially  reserved  to  himself 

'  Gneist,  English  Constitutional  History,  I.,  391  ;  High,  Extraordinary 
Legal  Remedies,  2d  Ed.,  5.  As  to  the  influence  of  the  Crown  over  the  decisions 
of  the  judges  even,  witness  the  famous  case  of  John  Hampden  in  the  court  of 
the  Exchequer. 

*  See  as  to  the  origin  of  this  fiction  Stubbs'  Constitutional  History,  I.,  487, 
601,  II.,  266  ;  cf,  Blackstone's  Commentaries,  III.,  41. 

'Gneist,  Const.  Hist.,  I.,  386,  citing  Bracton. 

^  See  Stubbs'  op.  cit.,  II.,  254  ;  Palgrave,  King's  Council,  61. 

^  I  Ryleys'  Pleadings,  534  ;  Abbreviatio  Placitorum,  21. 
VOL.  n — 13 


194     CONTROL  OVER  THE  ADMINISTRATION. 

the  decision  of  particularly  difficult  cases.^  Frora  these 
reserved  judicial  powers  grew  up  the  court  of  chancery 
as  well  as  other  courts.^  In  answer  to  such  appeals  the 
court  of  king's  bench  issued  in  the  name  of  the  Crown 
certain  writs  directed  to  the  officer  whose  decision  was 
complained  of,  and  so  formed  as  to  afford  the  desired 
relief.  Though  these  writs  were  originally  issued  from 
the  office  of  the  chancellor,^  the  court  soon  obtained 
the  right  to  issue  them  directly .^  These  writs  were 
named  from  the  most  prominent  words  in  them — words 
which  largely  expressed  the  purpose  of  the  writ.  Thus, 
if  anyone  appealed  to  the  Crown  to  force  a  recalcitrant 
officer  to  do  something  which  the  law  of  the  land  com- 
manded the  officer  to  do,  the  writ  which  was  issued  in 
answer  to  the  appeal  was  called  the  writ  of  mandamus.^ 
But  at  the  same  time  that  the  court  of  king's  bench 
was  developing  these  special  remedies,  which  became 
known  as  extraordinary  legal  remedies  or  prerogative 
writs,  the  chancellor,  the  keeper  of  the  King's  con- 
science, was,  through  the  exercise  of  the  reserved 
judicial  .powers  of  the  King,  also  developing  a  series 
of  special  remedies  called  equitable  remedies,  the  most 
important  of  which,  from  the  point  of  view  of  admin- 
istrative law,  was  the  bill  of  injunction.  Originally, 
however,  the  injunction  does  not  seem  to  have  been 
made  use  of  commonly  against  officers.  While  most 
of  the  writs  issued  by  the  royal  courts  were  issued  to 

^Stubbs,  op.  cit.,  I.,  487. 

'  Ibid.,   601-603. 

^  Palgrave,  op.  cit.,  8. 

*  Gneist,  Const.  Hist.,  I.,  394;  Palgrave,  op.  cit.,  16,  17  ;  Reeves,  History 
of  the  English  Law,  II.,  394,  507,  605. 

'The  word  "  mandamus"  was  applied  originally  to  all  the  commands  of  the 
King,  but  was  later  confined  to  the  writ  issued  by  the  court  of  king's  bench. — 
High,  Extraordinary  Legal  Remedies,  5. 


ADMINISTRATIVE  JURISDICTION.  195 

litigants  upon  proper  demand  de  cv/rsu^  and  were 
known  as  writs  ex  dehito  justitice,  the  writs  by  means 
of  which  the  court  of  king's  bench  exercised  its  super- 
visory powers  over  the  other  authorities  do  not  seem 
to  have  become,  in  early  times  at  any  rate,  writs  of 
right,  writs  ex  dehito  jitatitioe^  but  were  issued  only  in 
extraordinary  cases  when  some  gross  injustice  was 
done.  They  were  known,  therefore,  as  "prerogative 
vn-its."  The  same  was  practically  true  of  the  equitable 
remedies,  and  particularly  of  the  bill  of  injunction. 
Further  on  the  return  to  these  writs,  generally  only 
questions  of  law  were  considered.  They  were  made 
use  of  simply  to  keep  the  lower  authorities  within  the 
bounds  of  the  law,  and  could  not  be  used,  after  the 
practice  in  regard  to  them  became  crystallized,  to  re- 
view any  question  of  fact  or  of  expediency.  It  there- 
fore became  necessary  to  develop  some  further  remedy, 
unless  the  lower  authorities  were  to  be  permitted  to 
decide  such  questions  free  from  all  control.  Such  a 
method  was  found  in  the  power  which  was  granted  to 
the  individual  to  appeal  to  the  Privy  Council.  Such 
appeals  the  council  might  hear  as  a  result  of  the  fact 
that  the  King  granted  to  a  division  of  it,  viz.,  the  star 
chamber  a  portion  of  his  reserved  judicial  powers. 
This  body  acted  as  the  administrative  superior  of  the 
royal  authorities  in  the  localities,  and  on  appeal  to  it  ^ 
questions  of  fact  and  expediency,  as  well  as  of  law, 
could  be  considered.*  Formed  in  the  time  of  Henry 
YII  to  control  the  nobility,  who  had  grown  turbulent 
during  the  wars  of  the  E-oses,  it  served  at  first  to  pro- 
tect the  weaker  classes  of  the  community  against  the 

^  Blackstone,  op.  cit.,  IV.,  266  ;  Palgrave,  op.  cit.,  57-61,  101-108  ;  Stubbs, 
op.  cit.,  I.,  603. 


196     CONTROL  OVER  THE  ADMINISTRATION. 

arbitrariness  of  the  administrative  authorities,  which 
were  largely  chosen  from  the  nobility*;  but  it  was 
later,  viz.^  under  the  Stuarts,  used  in  such  a  way  that 
it  was  abolished  on  the  occasion  of  the  revolution  in 
1640.^  In  order  to  offer  an  appeal  similar  to  the  one 
which  disappeared  on  the  occasion  of  its  abolition,  it 
was  provided  in  a  series  of  statutes  that  the  court  of 
quarter  sessions  of  the  justices  of  the  peace,  which  had 
been  theretofore  mainly  an  administrative  authority 
for  the  purpose  of  county  administration,  could  hear 
and  decide  appeals  from  those  decisions  of  the  justices 
of  the  peace,  acting  singly  or  in  petty  and  special  ses- 
sions, which  affected  property  and  the  right  of  personal 
liberty.^  There  was  thus  formed  for  the  decision  of 
questions  of  fact  and  expediency,  as  well  as  of  law,  an 
administrative  court  in  each  county,  which  came  finally 
to  have  a  very  wide  power  of  control  over  the  acts  of 
subordinate  administrative  officers.  Its  members  fur- 
ther would  certainly  have  special  knowledge  of  the 
law  they  had  to  apply  and  of  the  conditions  of  admin- 
istrative action,  since  they  were  engaged  in  other 
capacities  as  administrative  officers. 

Further  the  commission  of  the  justices  of  the  peace 
enjoined  upon  them  in  difficult  cases  to  take  the  advice 
of  the  royal  courts.  This  came  finally  to  be  done  by 
"  stating  a  case  "  which  was  agreed  upon  by  the  justices 
and  the  parties  before  them,  and  which  was  then  sub- 
mitted to  the  royal  courts,  and  finally  decided  by  them.* 
In  consequence  of  these  facts,  one  of  the  writs  which 
were  originally  issued  by  the  court  of  king's  bench, 

^  Supra,  I.,  pp.  164,  196.  "^  II  Car.,  I.,  c.  10. 

*See  Smith,  Practice  at  Quarter   Sessions,   London,    1882,   title,  Appeals; 
Gneist,  Das  Englische  Verwaltungsrecht,  1884,  397. 
*  Smith,  op.  cit.,  518. 


ADMINISTRA  TIVE  J  URISDICTION.  1 97 

viz.,  the  certiorari^  lost  mucli  of  its  earlier  importance 
in  England ;  and  we  find  that  statute  after  statute  was 
passed  which  prohibited  its  use  as  a  means  of  appeal- 
ing from  the  acts  of  administrative  officers.^ 

But  up  to  the  coming  to  the  throne  of  the  Orange- 
Stuarts  in  1689,  all  officers,  whether  judges  or  admin- 
istrative officers,  held  their  office  at  the  will  of  the 
Crown.  There  was  no  judicial  tenure  as  there  was  at 
the  time  in  both  France  and  Germany.  In  this  fact, 
and  in  the  existence  in  the  Crown  of  reserved  judicial 
powers,  are  probably  to  be  found  the  reasons  why  the 
Crown  permitted  such  a  control  over  the  administration 
to  be  given  to  the  courts.  For  the  Crown  could  exer- 
cise at  any  time  a  strong  personal  influence  over  the 
judges  of  the  courts;  and  if  it  was  found  that  the 
administration  of  the  law  was  becoming  so  technical 
as  to  hamper  the  action  of  the  administration,  the 
Crown  could  at  any  time  exercise  its  reserved  powers 
and  transfer  any  matter  to  a  newly  created  and  more 
pliable  authority.^ 

In  1701,  however,  all  this  was  changed.  The  act  of 
settlement  made  the  judges  independent  of  the  royal 
power,  and  the  whole  tendency  of  English  develop- 
ment was  to  make  the  justices  of  the  peace  actually, 
though  not  legally  independent  of  the  Crown.  An 
attempt  by  Lord  Somers  during  the  reign  of  William 
III  to  coerce,  through  the  power  of  dismissal  from 
office,  numerous  justices  of  the  peace  raised  such  a 
storm  of  opposition  that  no  later  ministry  has  dared 
to  make  use  of  such  a  power.^ 

*  Gneist,  Das  Englische  Verwaltungsreckt,  1884,  406. 

'  This  was  actually  done  in  several  instances,  as  has  been  shown.     Cf.  Pal- 
grave,  op,  cii.,  57-61.  2  Supra,  I.,  p.  236. 


198     CONTROL  OVER  THE  ADMINISTRATION. 

At  the  same  time  that  the  tenure  of  the  judges  and 
the  justices  became  independent  of  the  Crown  their 
administrative  jurisdiction  remained  essentially  the 
same,  with  the  result  that  the  control  which  might 
before  have  been  regarded  as  merely  a  part  of  the 
administrative  control  became  absolutely  judicial  in 
character,  i,  e.  was  exercised  by  authorities  independent 
of  the  administration  which  was  to  be  controlled. 

2.  History  in  the  United  States. — Such  was  the  con- 
dition of  the  English  administrative  jurisdiction  at  the 
time  the  American  colonies  were  founded.  At  first, 
indeed,  the  American  judges,  like  the  English  judges 
of  the  same  period,  were  both  in  tenure  and  action 
under  the  control  of  the  executive  which  they  were  to 
control,  but  soon  their  tenure  was  assured  both  against 
the  executive  and  the  legislature,  so  that  from  a  very 
early  time  the  higher  courts  exercised  a  really  judicial 
control  over  the  actions  of  the  administration.  The 
justices  of  the  peace  did  not,  however,  at  first  become 
independent  of  the  administration  in  tenure.  And 
this  was  probably  the  reason  why  our  courts  of  quarter 
sessions  were  not  able  to  develop  any  very  large  ad- 
ministrative jurisdiction.  The  appointment  early  in 
our  history  of  other  officers  for  purely  administrative 
purposes  relegated  the  justices  to  the  position  of  infe- 
rior judicial  officers  who  have  a  police  jurisdiction  and 
a  minor  civil  private  law  jurisdiction.  They  were  left 
very  few  administrative  duties  to  perform.  Notwith- 
standing the  fact  that  the  justices  of  the  peace  in  the 
United  States  later  on  obtained  a  tenure  independent 
of  the  administration,  in  that  they  became  generally 
elected  by  the  people  for  a  fixed  term  of  office,  they 
never  got  anything  like  the  same  administrative  juris- 


ADMINISTRATIVE  JURISDICTION.  199 

diction  that  was  given  to  their  English  brothers.  It 
is  true  that  in  special  instances  we  find  appeals  from 
the  decisions  of  administrative  officers  allowed  to  the 
courts  of  the  justices  or  their  successors,  the  county 
courts.  Especially  is  this  true  in  some  of  the  southern 
commonwealths  and  in  Pennsylvania.  But  it  may 
safely  be  said  that  there  has  never  been,  and  is  not 
now  in  the  United  States  any  at  all  important  admin- 
istrative jurisdiction  except  such  as  is  to  be  found  in 
the  writs  which  the  higher  courts,  as  a  result  of  their 
being  the  heirs  of  the  English  court  of  king's  bench, 
have  the  right  to  issue.  We  have  lost  an  important 
part  of  the  English  administrative  jurisdiction — par- 
ticularly important  because  by  its  means  a  host  of 
questions  of  fact  and  of  expediency  could  be  reviewed 
on  appeal.  With  us  such  questions  are  decided  finally 
by  the  administration,  with  the  result  that  a  most 
precious  means  of  protecting  individual  rights  has  been 
lost. 


CHAPTER  V. 

THE   ADMINISTRATIVE   JURISDICTION    OF    THE    HIGHER 

COURTS. 

/. — At  common  law, 

1.  Tlie  special  remedies, — The  most  important  of  the 
special  remedies  developed  by  the  royal  courts  were 
five  in  number,  each  one  corresponding  to  a  particular 
need  which  experience  had  shown  to  exist.    They  were 
the  mandamus^  to  force  the  administration  to  do  what 
it  had  illegally  refused  to  do ;  the  prohibition  or  the  '> 
injunction,  to  prevent  the  administration  from  proceed- 
ing to  act  where  it  ought  not  to  act ;  the  certiorari,  to    /\ 
review  a  decision  already  made  by  the  administration, 
to  the  end  that  such  decision  might  be  annulled  or 
amended  ;  the  habeas  corpus  ad  subji-ciend/am,  to  bring  a 
the  matter  of  an  arrest  up  before  the  courts,  so  that  the 
person  arrested  might  be  set  at  liberty  in  case  the  ad-    , 
ministration  had  acted  illegally  ;  and  the  qiio  warranto, 
to  prevent  the  usurpation  of  a  royal  franchise  or  privi- 
lege.    This  was  later  so  shaped  as  to  be  made  use  of 
to  decide  the  question,  who  was  rightfully  entitled  to 
an  office  of  trust  and  profit.     Logically  there  was  no 
need  for  the  development  of  these  last  two  remedies,   ^ 
as  the  same  result  might  be  reached  through  the  use  of 

200 


JURISDICTION  OF  THE  HIGHER  COURTS.     201 

one  of  the  other  remedies.^  But  the  questions  of 
illegal  arrest  and  imprisonment  and  the  usurpation  of 
franchise  or  office  were  believed  to  be  so  important 
that  as  a  matter  of  fact  special  remedies  were  de- 
veloped for  these  matters.  What  was  originally  a 
somewhat  informal  complaint  on  the  part  of  the  indi- 
vidual that  injustice  had  been  done,  became  finally,  as 
in  the  case  of  all  the  writs  issued  by  the  royal  courts,  a 
demand  for  the  issue  of  a  special  remedy  or  wiit  such 
as  the  courts  had  fallen  into  the  habit  of  issuing.  It 
was  but  a  short  step  under  such  conditions  for  the 
courts  to  hold  that  the  demand  for  a  special  remedy 
did  not  justify  the  court  in  issuing  any  other  writ  than 
the  one  demanded.  While  the  appeal  to  the  court 
might  be  made  against  any  act  of  the  administration 
and  the  administrative  jurisdiction  was  not  enumerated 
in  the  sense  that  a  special  statutory  authorization  was 
necessary  in  each  case  of  its  exercise,  the  remedies 
which  could  be  asked  for  in  particular  cases  were 
gradually  enumerated  in  the  decisions  of  the  courts. 
A  simple  complaint  of  the  denial  of  justice  was  finally 
insufficient.^  The  decisions  of  the  courts  have  thus  be- 
come quite  technical  in  their  character  and  hold  that  a 
writ  which  may  be  properly  made  use  of  for  one  pur- 
pose may  not  be  made  use  of  for  another.     Thus  the 

'  Thus  in  New  York  the  haheas  corpus  has  as  a  result  of  the  provisions  of  the 
Code  of  Civil  Procedure  been  somewhat  replaced  by  the  certiorari  to  inquire 
into  the  cause  of  detention.  Sec.  2015 ;  cf.  Church,  Habeas  Corpus,  330 
et  seq. 

'Viner's  Abridgement,  2d  Ed.,  xv.,  185,  citing  Barnwell's  Chancery  Rep., 
377,  anno  1740,  where  the  plaintiff  asked  for  a  bill  in  chancery  and  was  told 
to  ask  for  a  mandamus  ;  also  p.  200,  citing  Queen  v.  Hungerford,  ii  Mod.  Rep., 
142,  where  quo  warranto  was  asked  for  and  the  applicant  was  told  he  could  have 
a  mandamus.  See  also  p.  206,  citing  12  Mod.  196  ;  and  p.  208,  citing  11  Mod., 
254. 


202     CONTROL  OVER  THE  ADMINISTRATION, 

mandamus  is  not  the  proper  writ  to  try  the  title  to 
office/  Neither  the  mandamus  nor  the  injunction  is 
the  proper  remedy  to  review  the  decision  of  a  sub- 
ordinate administrative  authority ;  this  is  to  be  done 
by  the  certiorari}  It  has  therefore  become  necessary 
for  the  applicant  for  the  exercise  of  the  administrative 
Jurisdiction  of  the  higher  courts  to  make  it  certain,  be- 
fore he  applies  for  the  issue  of  any  particular  writ, 
that  he  is  asking  for  the  proper  remedy.  For  if  he 
does  not  he  will  be  non-suited. 

2.  Prerogative  character  of  the  writs, — In  the  sec- 
ond place,  owing  to  the  fact  that  these  writs  were 
developed  as  a  result  of  the  exercise  of  the  reserved 
judicial  powers  of  the  Crown  they  have  never  become 
writs  ex  debito  justitice,  that  is  the  individual  may 
not  have  them  merely  for  the  asking,  as  is  the  case  with 
the  writs  beginning  ordinary  actions.  The  courts  may 
refuse  in  their  discretion  to  issue  them.^  From  a  very 
early  time,  however,  on  account  of  the  importance  of 
maintaining  in  its  integrity  the  right  of  personal  liber- 
ty, the  habeas  corpus  has  been  regarded  as  a  writ  ex 
debito  justiticB  ^.  e,  to  be  issued  on  probable  cause 
shown  ^;  and  the  Habeas  Corpus  act,^  provided 
that  the  judges  should  issue  it  under  a  penalty 
for  refusal.  With  this  exception  the  rule  was  that 
these  writs  were,  as  the  law  expressed  it,  preroga- 
tive in  character.  The  tendency  of  the  more  mod- 
ern decisions  as  well  as  of  the  statutes  passed  on  this 

^  People  V.  Corporation  of  New  York,  3  Johnson's  Cases,  79. 

'  Mowers  v.  Smedley  et  al.,  6  Johnson's  Chancery,  27  ;  People  v.  Police  Com- 
missioners, 43  Howard's  Pr.,  385. 

*  See  Viner,  op.  cit.  sub  verba  Certiorari^  iv.,  p.  345,  citing  8  Mod.,  331  ; 
also  King  v.  Barker,  i  Wm.  Blackstone,  352. 

^  Church,  op.  cit.,  94  et  seq. 

^  31  Car.  II,,  cap  2,  X.  ;  Church,  op.  cit.,  109. 


JURISDICTION  OF  THE  HIGHER  COURTS.     203     ^ 

subject  has  in  both  countries  been  to  assimilate  these 
writs  more  and  more  to  ordinary  actions  which  have 
no  prerogative  character  at  all.  This  tendency  has 
been  more  marked  in  the  United  States  than  in  Eng- 
land/ In  some  cases  too  the  writs  have  been  abolished 
altogether  and  ordinary  actions  substituted  for  them. 
This  is  true  in  New  York  of  the  quo  warranto^  and  the 
information  in  the  nature  of  a  quo  warranto  which 
soon  took  its  place.  Here,  however,  the  individual 
before  the  action  can  be  brought  must  get  the  attorney 
general  to  move,  who,  it  would  seem,  has  the  monopoly 
of  the  action;  and  it  has  been  held  that  the  courts 
may  not  force  the  attorney  general  to  bring  such  action.^ 
Even  in  England,  where  the  writs  are  regarded  as  more 
prerogative  in  character  than  here,  the  modifications 
in  the  procedure  adopted  of  late  years  have  resulted  in 
a  practically  greater  freedom  and  ease  in  obtaining  the 
writs.  Indeed  in  some  cases,  as  the  result  of  statutory 
provision,  they  have  become  really  little  more  than 
ordinary  actions. 

But  notwithstanding  the  limitation  of  their  preroga- 
tive character  the  courts,  even  of  the  United  States,  have 
large  discretion  in  granting  or  refusing  the  application 
for  the  issue  of  most  of  the  writs.  In  some  cases  the 
preliminary  decision  refusing  the  issue  of  the  writ  is 
not  appealable  even  ^ ;  and  in  no  case  will  they  issue 
them  where  there  is    any  other    adequate   remedy.^ 

^  High,  Extraordinary  Legal  Remedies ,  passim  ;  cf.  Commonwealth  v.  Deni- 
son,  24  Howard,  U.  S.,  66. 

^  Code  of  Civil  Procedure,  sees.  1948,  1893  ;  People  v.  Fairchild,  67  N.   Y., 

834. 

^  See  People  v.  Stillwell,  19  N.  Y.,  531  ;  People  v.  Commissioners,  82  N. 
Y.,  506  ;  People  v.  Hijl,  53  N.  Y.,  547. 

^  Rex  V.  Water  Works,  i  N.  &  P.,  48  ;  People  v.  Board  of  Apportionment, 
64  N.  Y.,  627  ;  People  v.  Betts,  55  N.  Y.,  660  ;  High,  Injunctions^  3d  Ed.,  sec. 
28. 


204     CONTROL  OVER  THE  ADMINISTRATION. 

What  is  an  adequate  remedy  is  to  be  decided  by  tbe 
courts.  They  have  held  that  a  suit  for  damages  against 
an  official  is  not  an  adequate  remedy,  ^  but  have  inti- 
mated, at  any  rate,  that  a  suit  for  damages  against  a 
municipal  corporation,  v^here  damages  were  in  the 
nature  of  things  a  perfectly  competent  means  of  relief, 
is  an  adequate  remedy.  ^  They  have  also  held  that 
the  remedy  by  indictment  of  an  officer  was  not  an  ade- 
quate remedy.^ 

3.  Tlie  purpose  of  the  writs. — The  purpose  of  the 
writs  is  twofold.  In  the  first  place,  they  are  issued 
mainly  with  the  intention  of  protecting  private  rights ; 
in  the  second  place,  some  of  them  may  be  made  use  of 
also  for  the  purpose  of  the  maintenance  of  the  law 
regardless  of  the  fact  whether  in  the  particular  case  a 
private  right  is  attacked  or  not.  Thus  in  the  case  of 
the  certiorari  it  has  been  held  that  this  writ  may  not 
be  made  use  of  simply  for  the  maintenance  of  the  law, 
that  no  one  may  apply  for  it  unless  he  has  some  par- 
ticular interest  in  its  issue  which  is  greater  than  that 
possessed  by  the  ordinary  citizen.*  The  courts  have, 
however,  held  vdth  regard  to  the  qvx)  warranto  that  it 
may  be  issued  on  the  demand  of  a  citizen  of  responsi- 
bility 5 ;  and  the  better  rule  would  seem  to  be  that  in 

•  People  V.  Green,  58  N.  Y.,  295. 

^  Buck  V.  City  of  Lockport,  6  Lansing,  251. 

'  Queen  v.  Eastern  Counties  R'y  Co.,  to  Ad.  &  EL,  531  ;  King  v.  Severn  & 
V/ye  R'y  Co.,  2  Barn.  &  Aid.,  644  ;  People  v.  Mayor  of  N.  Y.,  10  Wendell, 
395  ;  In  re  Trenton  Water  Power  Co.,  Spencer,  N.  J.,  659  ;  Fremont  v. 
Crippen,  10  Cal.,  211  ;  see  also  Mechem,  Law  of  Public  Officers,  sec.  941, 
note  3. 

"*  People  V.  Leavitt,  41  Mich.,  470;  People  v.  Walter,  68  N.  Y.,  403; 
People  V.  Phillips,  67  N.  Y.,  582  ;  State  v.  Lamberton,  37  Minn.,  362  ;  Gran- 
ville V.  County  Commissioners,  97  Mass.,  193. 

^  Commonwealth  v.  Neeser,  44  Pa.  St.,  341  ;  State  v.  Kammer,  42  N.  J.  L., 
435;  Commonwealth  v.  Commissioners,  i  S.  &  R.,  380;  State  v.  Martin, 
46  Conn.,  479. 


JURISDICTION  OF  THE  HIGHER  COURTS.     205 

matters  of  public  concern  any  citizen  or  taxpayer  may 
apply  for  the  mandamus}  Further  in  the  proper  cases 
the  officers  of  the  administration  may  apply  to  the 
courts  to  force  by  these  writs  inferior  officers  to  perform 
their  duties.^  Finally  as  a  result  of  the  Habeas  Corpus 
act  passed  in  the  reign  of  Charles  II  any  one  may  apply 
for  the  writ  of  habeas  corpus  whether  he  has  any  par- 
ticular interest  or  not,  that  is,  whether  his  own  private 
rights  are  involved  or  not.^  This  rule  has  been  very 
generally  adopted  into  the  law  of  the  United  States 
and  is  undoubtedly  due  to  the  necessity  of  affording 
as  complete  a  protection  as  possible  to  the  right  of 
personal  liberty,  to  the  necessity  of  the  maintenance  of 
the  law  on  this  subject. 

4.  Questions  considered  on  the  writs. — As  a  general 
rule  the  courts  may  not  on  these  writs  consider  or 
review  the  questions  of  fact  or  expediency  which  have 
been  decided  by  the  administrative  authorities.  This 
is  one  of  the  most  important  general  principles  affect- 
ing the  use  of  the  writs  and  lies  at  the  basis  of  nearly 
all  the  cases."*  The  principle  is  applicable  whatever  be 
the  rank  or  character  of  the  officer  who  is  to  be  con- 
trolled. Be  he  never  so  humble  if  he  have  discretion 
that  discretion  he  is  to  exercise  free  from  any  control ; 
be  he  never  so  influential  he  must  act  in  accordance 

^  People  V.  Collins,  19  Wendell,  56  ;  People  v.  Halsey,  37  N.  Y.,  344  ;  see 
also  People  v.  Common  Council  of  Buffalo,  38  Hun  N.  Y.,  637. 

'  People  V.  Canal  Board,  55  N.  Y.,  390  ;  People  v.  Trustees,  54  Barb,  N.  Y., 
480;  Attorney  General  v.  Boston,  123  Mass.,  460;  Wellington  et  al.  Petition- 
ers, 16  Pickering,  Mass.,  87,  105. 

2  31  Car.  II.,  cap.  2,  X.  ;  Church,  op.  cit.,  93, 

*  Rex  V.  Chichester,  2  El.  &  EL,  209  ;  King  v.  Justices,  4  Dow.  &  Ry.,  735  ; 
United  States  v.  Seaman,  17  Howard,  U.  S.,225;  Gaines  v.  Thompson,  7  Wal- 
lace, 347;  People  V.  Commissioners,  30  N.  Y.,  72;  Burch  v.  Hardwicke,  23 
Grattan,  Va.,  51.  An  important  exception  is  made  in  the  case  of  the  habeas 
corpus^  see  Church,  op.  cit.^  c.  xiii. 


2o6     CONTROL  OVER  T'HE  ADMINISTRATION. 

with  the  law.  Thus  the  decision  by  a  board  of 
local  highway  commissioners  as  to  the  route  to  be 
taken  by  a  highway  may  not  be  reviewed  by  the 
courts,^  while  the  refusal  of  the  United  States  secre- 
tary of  the  interior  to  issue  a  patent  for  lands  after 
all  questions  of  discretion  had  been  decided  in  favor 
of  the  applicant  has  been  held  to  be  the  violation  of  a 
ministerial  duty  and  may  be  overcome  by  application 
to  the  court.^  This  rule  is,  however,  subject  to  one  or 
two  exceptions.  The  questions  of  fact  which  have 
been  decided  by  an  administrative  authority  in  decid- 
ing as  to  the  title  to  office  may  be  reviewed  by  the 
courts  on  either  mandamus  or  quo  warranto^  Fur- 
ther the  courts  will  not  permit  administrative  officers 
so  to  make  use  of  their  discretion  as  to  make  a  deci- 
sion which  is  absolutely  unsupported  by  the  evidence 
but  will  on  certiora/ri  quash  such  decision.*  Again 
the  courts  hold  that  where  a  statute  provides  that  an 
officer  may  be  removed  from  office  for  cause  only,  they 
have  the  right  to  control  the  discretion  of  the  remov- 
ing officer  in  deciding  what  is  cause.^  The  courts,  it  is 
true,  do  not  ground  their  decisions  on  any  desire  to 
control  the  discretion  of  administrative  officers,  but  on 
the  proposition  that  the  question,  what  is  cause,  is  not 
a  question  of  discretion  but  a  question  of  law.  But 
this  does  not  alter  the  fact  that,  as  a  result  of  these 

*  People  V.  Collins,  19  Wendell,  56. 

^  United  States  v.  Schurz,  102  U.  S.,  378.  See  also  People  v.  Beach,  19 
Hun,  N.  Y.,  259. 

^State  V.  Garesche,  65  Missouri,  480;  People  v.  Pease,  27  N.  Y.,  45. 

*  People  V.  Board  of  Police,  39  N.  Y.,  506  ;  People  ex  rel.  Hogan  v.  French  ; 
People  ^;r  rel.  McAleer  v.  French,  119  N.  Y.,  493,  502. 

'People  V.  Board  of  Police,  72  N.  Y.,  415  ;  People  v.  Board  of  Fire  Com- 
missioners, 73  N.  Y.,  437  ;  State  v.  St.  Louis,  90  Mo.,  19  ;  Stockwell  v.  Town- 
ship Board,  22  Mich.,  341  ;  see  also  Kennard  v.  Louisiana,  92  U.  S.,  480. 


JURISDICTION  OF  THE  HIGHER  COURTS.     207 

decisions,  the  courts  do  exercise  a  control  over  tlie  dis- 
cretion of  administrative  officers — and  that  too  upon  a 
point  where  many  think  that  it  is  necessary  that  the 
administration  should  possess  full  and  unlimited  dis- 
cretion. Finally  in  several  instances  special  statutes 
have  been  passed  which  expressly  give  to  the  courts  a 
control  over  the  discretion  of  the  administration.  Thus 
the  present  customs  administrative  act  gives  to  the  cir- 
cuit courts  of  the  United  States  the  power  on  a  sort  of 
statutory  certiorari  to  reverse  or  amend  the  decisions 
even  of  fact  of  the  board  of  general  appraisers  as  to 
classification  of  articles  for  duty  under  the  tariff  acts.^ 
Thus  also  the  legislature  of  New  York  has  provided  ^ 
that  if  the  commissioners  of  excise  in  the  larger  cities 
refuse  arbitrarily  to  issue  a  license  for  the  retail  sale  of 
liquor  to  be  drgnk  on  the  premises,  the  party  who  has 
thus  been  refused  a  license  may  appeal  to  the  courts 
for  the  issue  of  a  mandamus  to  the  commissioners  to 
grant  the  license.  Thus  also  the  legislature  of  the 
same  commonwealth  has  provided  ^  that  in  case  any 
person  is  aggrieved  by  the  decision  of  the  assessors  as 
to  the  value  of  his  property  for  the  purposes  of  taxa- 
tion, he  may  have  a  certiorari  on  which  the  courts  may 
reverse  or  amend  the  decision  of  the  assessors  on  the 
ground  both  of  illegality  and  of  unfairness  or  dispro- 
portionality.* 

Finally  for  political  reasons  the  courts  have  very 
generally  laid  down  the  rule  that  they  will  not  exer- 

*  U.  S.  Laws  of  1889-90,  c.  407,  sec.  15.  Here  it  is  probably  a  remedy  ex 
debito  justiiice. 

«  L.  1886,  c.  496. 
3L.  1880,  c.  269. 

*  See  also  New  York  Code  of  Civil  Procedure,  sec.  2140,  which  provides  that 
the  court  in  deciding  on  the  writ  of  certiorari  may  consider  the  weight  of  the 
evidence. 


2o8     CONTROL  OVER  THE  ADMINISTRATION. 

cise  their  administrative  jurisdiction  where  it  brings 
them  into  actual  conflict  with  the  chief  executive.^ 
The  rule  is  clear  as  to  the  President  of  the  United 
States,  but  is  not  so  clear  as  to  the  governors  of  the 
various  commonwealths.^  Most  of  the  cases  where  the 
mandamus  has  been  issued  to  the  governor  have  been 
friendly  suits  where  the  governor  has  not  objected  to 
the  jurisdiction ;  indeed  one  of  them  holds  expressly 
that  the  court  will  issue  the  writ  of  mandmnvs  to  the 
governor  if  he  does  not  object.^  Where,  however,  the 
courts  may  issue  the  writs  without  coming  into  direct 
conflict  with  the  executive  they  seem  to  have  no  objec- 
tion to  issuing  them,  even  if  they  will  be  forced  to 
annul  the  acts  of  the  executive/  Thus  they  have  is- 
sued a  habeas  corpus  to  consider  the  validity  of  an  act 
of  the  governor  in  the  extradition  of  a  fugitive  from 
justice,  and  have  decided  that  such  act  was  not  in 
accordance  with  the  law.^  In  the  case  of  Ex  parte 
Merryman,  a  case  of  habeas  corpus,  however,  the  writ 
absolutely  failed  of  its  purpose  because  the  officer  to 
whom  it  was  issued  was  supported  in  his  action  by  the 
President,  and  the  court  refused  to  take  any  further 
step  on  account  of  the  danger  of  a  conflict  with  the 
executive.     Some  of  the  commonwealths  have  endea- 

*  State  of  Mississippi  v.  Johnson,  4  Wall.,  475  ;  Grier  v.  Taylor,  4  McCord, 
206  ;  People  v.  Hill,  13  N.  Y.  Supplement,  186  ;  New  York  Law  yournal^ 
April  13,  1891  ;  affirmed  on  different  grounds  in  126  N.  ¥..  497  ;  High,  Ex- 
traordinary  Legal  Remedies^  2d  Ed.,  sec.  iiS  and  cases  cited. 

'^As  to  the  mandamus  see  Cotton  v.  Ellis,  7  Jones,  N.  C.  545  ;  State  v. 
Chase,  5  Ohio  St.,  528. 

3 People  V.  Bissell,  19  111.,  229.  As  to  the  quo  warranto  see  Attorney  Gen- 
eral V.  Barstow,  4  Wis.,  567. 

^  See  People  v.  Piatt,  50  Hun,  454. 

^People  V.  Curtis,  50  N.  Y.,  321  ;  People  v.  Brady,  56  N.  Y.,  182  ;  see  also 
Ex  parte  Merryman,  Taney,  246,  9  American  Law  Register^  524;  Ex  parte 
Field,  5  Blatchford,  63. 


JURISDICTION  OF  THE  HIGHER  COURTS.     209 

vored  to  extend  this  exemption  from  the  operation  of 
the  administrative  jurisdiction  of  the  courts  to  the  heads 
of  departments.  But  this  is  not  the  best  rule  either  in 
the  United  States  or  England,  and  is  in  conflict  with 
the  decisions  of  the  United  States  Supreme  Court.* 

5.  Distinction  between  legal  and  equitable  remedies, 
— Besides  these  general  rules  which  are  applicable  to 
all  the  remedies  by  which  the  administrative  jurisdic- 
tion of  the  courts  is  governed  there  are  a  number  of 
special  rules  with  regard  to  each  one  of  the  remedies. 
Thus  there  is  quite  a  distinction  between  the  extraor- 
dinary legal  and  the  equitable  remedies.  While  the 
former  are  almost  always  issued  where  the  act  of  the  ad- 
ministration is  absolutely  illegal  in  character,  the  latter 
may  be  issued  only  in  those  cases  where  the  applicant 
for  the  remedy  can  bring  his  case  under  one  of  the 
recognized  heads  of  equitable  jurisdiction,  such  as  that 
the  act  complained  of  is  a  breach  of  trust,  will  result 
in  irreparable  mischief  to  real  property  or  will  lead  to 
a  multiplicity  of  suits.^  Further  if  we  compare  the 
injunction  with  the  prohibition,  whose  purposes  are 
largely  the  same,  we  find  that  the  injunction  appears 
to  be,  in  the  United  States  at  any  rate,  the  popular 
remedy.  Although  legally  the  courts  have  about  the 
same  discretion  as  to  the  issue  of  both  of  these  reme- 
dies, as  a  matter  of  fact  they  seem  to  issue  the  injunc- 
tion much  more  easily  than  the  prohibition,  and  indeed 
in  some  of  the  commonwealths  make  use  of  the  pre- 

•  See  U.  S.  V.  Schurz,  102  U.  S.,  378.  There  is  also  conflict  on  this  point  in 
the  English  decisions.  See  Queen  v.  Lords,  etc.,  4  Ad.  &  El.,  286  ;  Same  v. 
Same,  4  Eng.  Rep.,  277;  Same  v.  Same,  L.  R.,  7  Q.  B.,  387;  cf.  Gneist, 
Das  Englische  Verwaltungsrecht,  1884,  712. 

'Green  v.  Mumford,  5  R.  I.,  472,  475  ;  Dow  v.  Chicago,  11  Wall.,  108  ;  Mil- 
liard, Injunctions,  3d  Ed.,  486. 
VOL.  11. — 14. 


2IO     CONTROL  OVER  THE  ADMINISTRATION. 

liminary  injunction  with  such  freedom  as  in  many 
cases  to  paralyze  almost  completely  th§  action  of  the 
administration.  This  is  unfortunately  the  case  in  New 
York.  Here  police  officers  have  in  several  instances 
been  by  the  injunction  restrained  from  preventing  pal- 
pable violations  of  the  law.*  In  England,  however, 
the  injunction  seems  rarely  to  be  made  use  of  as  a 
means  of  preventing  administrative  action.  Gneist 
does  not  even  mention  it  as  one  of  the  remedies  in  his 
description  of  the  administrative  jurisdiction  of  the 
English  courts,  but  speaks  of  prohibition  only  ^ ;  and 
a  search  through  the  English  digests  reveals  very 
few  cases  of  the  use  of  the  injunction  against  adminis- 
trative officers.* 

6.  Administrative  jurisdiction  of  the  United  States 
federal  courts. — In  the  case  of  the  commonwealth 
courts  the  general  rule  is  that  the  administrative  juris- 
diction is  possessed  by  all  those  courts  which  have 
inherited  the  jurisdiction  of  the  court  of  king's  bench 
— and  most  courts  of  general  common  law  jurisdiction 
have  inherited  such  jurisdiction.  This  rule  prevents 
courts  with  a  mere  appellate  jurisdiction  from  exercising 
the  administrative  jurisdiction  ^ ;  and  results  also  in 
the  fact  that  the  equitable  remedies  may  be  issued 
only  by  courts  possessing  equity  jurisdiction.  The 
administrative  jurisdiction  of  the  United  States  federal 
courts  is  not  however  governed  by  these  general  prin- 

'  A  good  collection  of  these  cases  was  made  in  an  editorial  of  the  New  York 
Times  of  April  23,  1886. 

^  Das  Englische  Verwaltungsrecht,  1884,  404. 

^  That  it  is  used  now  and  then  may  be  seen  from  the  cases  of  Ellis  v.  Earl 
Grey,  i  Simon,  214  ;  and  i  Vesey  Sr.,  188. 

4  Morgan  V.  Register,  Hardin,  609  ;  State  v.  Biddle,  36  Ind.,  138  ;  State  v. 
Ashley,  i  Ark.,  513  ;  Memphis  v.  Halsey,  12  Heiskell,  Tenn.,  210  ;  see  also 
Perry  V.  Shepherd,  78  N.  C,  83. 


JURISDICTION  OF  THE  HIGHER  COURTS.     211 

ciples,  but  is  so  fixed  in  detail  by  the  constitution  and 
the  statutes  that  it  becomes  necessary  to  have  reference 
to  these  and  to  the  decisions  made  in  interpretation  of 
them  in  order  to  understand  what  exactly  is  the  juris- 
diction of  these  courts.  It  has  been  held  in  a  series  of 
decisions  that  the  United  States  courts  generally  have 
no  power  to  issue  the  niandarmis  or  certiorari  except 
to  aid  an  already  acquired  jurisdiction  :  the  Supreme 
Court,  because  the  constitution  does  not  include  this 
power  within  the  original  jurisdiction  given  to  that 
court ' ;  the  circuit  courts  and  the  district  courts,  be- 
cause such  power  has  not  been  granted  to  them  by  the 
judiciary  act.^  The  supreme  court  of  the  District  of 
Columbia  may,  however,  as  a  result  of  the  fact  that  it 
has  inherited  for  the  territory  of  the  District  of  Colum- 
bia the  jurisdiction  of  the  court  of  king's  bench,  issue 
the  mandamus^  and  probably  as  a  result  of  the  applica- 
tion of  the  same  principle  the  writ  of  certiorari  also. 
It  is  to  be  noted,  however,  that  the  recent  customs 
administrative  act  gives  the  power  to  the  circuit  courts 
to  issue  a  sort  of  statutory  certiorari  to  the  boards  of 
general  appraisers  in  customs  matters.^  Where,  how- 
ever, it  is  necessary  to  issue  such  writs  in  order  to 
enforce  a  jurisdiction  already  in  other  ways  acquired, 
they  may  issue  the  mandamus,  and  as  a  result  of  the 
application  of  the  same  principle  the  certiora/ri.^     In 

*  Marbury  v.  Madison,  i  Cranch,  137  ;  In  re  Kaine,  14  Howard,  103  ;  Ex 
parte  Vallandigham,  i  Wallace,  243  ;  U.  S.  v.  Young,  94  U.  S.  258,  259. 

^  Mclntire  v.  Wood,  7  Cranch,  504  ;  U.  S.  v.  Smallwood,  i  Chicago  Legal 
News,  321  ;  Ex  parte  Nzxi  Orden,  3  Blatchford,  167;  Patterson  v.  U.  S.,  2 
Wheaton,  221. 

3  Kendall  v.  U.  S.,  12  Peters,  524. 

^  Supra,  II.,  p.  207. 

*  Lansing  v.  County  Treasurer,  i  Dillon,  522  ;  see  also  Reesv.  City  of  Water- 
town,  19  Wall.  107. 


212     CONTROL  OVER  THE  ADMINISTRATION. 

some  of  the  cases  laying  down  this  i-ule  a  mandamus 
was  issued  by  a  circuit  court  to  a  municipal  corporation 
to  compel  it  to  provide  for  the  payment  of  a  judgment 
obtained  in  the  court  against  such  corporation.  Further 
as  a  result  of  the  provisions  of  the  United  States  con- 
stitution the  Supreme  Court,  it  would  seem,  has  such 
power  in  cases  where  a  commonwealth,  or  a  foreign 
diplomatic  or  consular  officer  is  a  party .^  The  rules  are 
about  the  same  with  regard  to  the  prohibition.  The  Su- 
preme Court  has  no  right  to  issue  a  prohibition  except  in 
admiralty  matters  ^ ;  and  it  is  very  doubtful  whether 
the  circuit  courts  may  issue  a  prohibition  at  all.^  The 
rules  are,  however,  more  liberal  with  regard  to  the  in- 
junction, the  habeas  corpus,  and  the  quo  warranto.  The 
power  to  issue  the  habeas  corpus  even  to  the  adminis- 
trative authorities  of  the  commonwealths  is  given  to  all 
the  United  States  courts,  except  the  Supreme  Court.* 
They  have  also  the  right  to  issue  the  quo  warranto 
when  the  question  at  issue  concerns  the  denial  of  the 
right  to  vote  on  account  of  race,  color,  or  previous  con- 
dition of  servitude  for  any  officer  other  than  presiden- 
tial elector  and  legislative  officers,  or  concerns  the 
disqualification  for  office  resulting  from  the  violation 
of  official  oath,  by  engaging  in  insurrection  or  rebellion 
against  the  United  States  or  giving  aid  and  comfort  to 
its  enemies.5  The  Supreme  Court  may  not  issue  the 
injunction  except  to  aid  an  already  acquired  jurisdic- 
tion and  except  in  cases  where  a  commonwealth,  or  a 

*  Const.,  Art.  III.,  sec.  2,  par.  3. 

*  U.  S.   Rev.    Stats.,  sec.  688  ;    U.  S.  v.  Peters,  3  Dallas,  121  ;  Ex  parU 
Christy,  3  Howard,  292  ;  Ex  parte  Insurance  Co.,  118  U.  S.,  61. 

*  U.  S.  Rev.  Stats.,  sec.  716 ;  /»  r^  Binninger,  7  Blatchford,  159. 

*  U.  S.  Rev.  Stats.,  sees.  751-766  ;  Ex  parte  Barry,  2  How.  65. 

"  Amendment  14,  sec.  3  ;  U.  S.  Rev.  Stats.,  sec.   563,  pars.  13  and  14. 


JURISDICTION  OF  THE  HIGHER  COURTS.     213 

foreign  diplomatic  or  consular  officer  is  a  party. ^  The 
other  United  States  courts  have  a  large  power,  except 
in  tax  cases,  to  offer  the  equitable  remedies  in  proper 
cases  against  the  action  of  both  national  and  common- 
wealth officers  though  they  are  pretty  careful  in  their 
issue  of  the  injunction.^ 

These  rules  apply  as  well  to  the  issue  of  these  reme- 
dies against  commonwealth  officers  as  to  their  issue 
against  the  officers  of  the  United  States  government. 
If  they  have  not  an  already  acquired  jurisdiction  in  the 
cases  where  this  is  necessary,  they  may  not  issue  the 
writs.  If  they  have  they  may.^  On  the  other  hand 
the  courts  of  the  commonwealths  may  never  exercise 
their  administrative  jurisdiction  in  order  to  control  the 
actions  of  the  officers  of  the  national  government.  For 
the  United  States  courts  have  exclusive  jurisdiction 
generally  of  all  cases  arising  under  the  constitution 
and  laws  of  the  United  States.'^  The  result  is  that  the 
officers  of  the  national  government  are  not  nearly 
so  subject  to  the  administrative  jurisdiction  of  the 
courts  as  are  the  commonwealth  officers.  But  this 
control  is  not  nearly  so  necessary  as  in  the  common- 
wealth administration.  For  the  administrative  control 
is  so  strong  in  the  United  States  administrative  sys- 
tem that  the  mistakes  of  subordinate  administrative 
officers  are  quite  easily  corrected  on  appeal  ^ ;  and  if  on 
such  appeal  the  aggrieved  individual  is  not  able  to  ob- 

*  U.  S.  Const.,  Art.  III.,  sec.  2,  par.  3. 
'  U.  S.  Rev.  Stats.,  sec.  629,  par.  2. 

*  Supra,  II.,  p.  211  ;  Graham  v.  Norton,  15  Wallace,  247  ;  Commonwealth  v. 
Dennison,  24  Howard,  66. 

*  U.  S.  Const.,  Art.  III.,  sec.  2,  p.  i  ;  Brewer  v.  Kidd,  23  Mich,,  440  ;  Able- 
man  V.  Booth  and  U.  S.  v.  Booth,  21  How.,  506;  Tarble's  Case,  13  Wall., 

397. 

^Butterworth   v.  U.  S.,  112  U.  S.,  50,  57. 


214     CONTROL  OVER  THE  ADMINISTRATION. 

tain  satisfaction  lie  in  all  cases  has  the  right  of  applying 
to  the  supreme  court  of  the  District  of  Columbia,  which 
has  the  common  law  administrative  jurisdiction  for 
the  territory  of  the  District  of  Columbia,  where  all  the 
heads  of  departments  are  to  be  found ;  and  appeal  may 
be  taken  from  this  court  to  the  Supreme  Court  of  the 
United  States. 

//. — Special  and  statutory  administrative  jurisdiction  of  the 

lower  courts. 

The  special  and  technical  character  of  the  common 
law  administrative  jurisdiction  of  the  courts  has  made 
it  seem  advisable  in  certain  rather  exceptional  cases, 
where  no  one  of  the  writs  affords  the  proper  relief,  to 
provide  by  statute  for  special  appeals,  generally  to  the 
lower  courts,  from  the  decisions  of  administrative  offi- 
cers, when  either  questions  of  law  alone  or  questions  of 
both  law  and  fact  may  be  considered. 

1.  Appellate  jurisdiction  of  courts  of  quarter  sessions 
or  county  courts, — It  has  been  shown  that,  after  the 
abolition  of  the  court  of  star  chamber,  which  served 
as  an  appellate  court  on  questions  of  both  law  and  fact 
for  the  decisions  of  the  subordinate  English  adminis- 
trative officers,  it  was  provided  in  a  series  of  statutes 
that  appeals  should  thereafter  be  taken  to  the  court  of 
quarter  sessions  of  the  county,  which  was  composed  of 
the  justices  of  the  peace  of  the  county.  This  sort  of 
administrative  jurisdiction  differs  considerably  from 
that  of  the  royal  courts,  which  has  been  considered. 
In  the  first  place,  the  remedy  is  a  general  one — a  simple 
appeal  against  the  act  complained  of — while  the  juris- 
diction is  enumerated.  In  the  royal  courts  it  will  be 
remembered  that  the  converse  is  true,  i.  e,  the  remedies 


JURISDICTION  OF  THE  LOWER  COURTS.      215 

are  special  in  character  and  the  jurisdiction  is  general. 
No  one  can  appeal  to  the  quarter  sessions  from  an 
order  or  decision  unless  a  statute  specially  permits  an 
appeal  to  be  taken  in  the  class  of  cases  of  which  the 
one  at  bar  is  one/  In  the  second  place,  the  appeal  may- 
be and  is  usually  taken  on  questions  of  fact.  If  ques- 
tions of  law  are  raised  the  proper  courts  to  appeal  to 
are  the  royal  courts,  to  which  appeal  goes  by  special 
case  or  special  writs.*^  In  the  third  place,  the  general 
conditions  under  which  the  appeal  may  be  taken  are 
that  the  party  appealing  must  be  immediately  aggrieved 
by  the  act  complained  of,  not  consequentially  but  im- 
mediately aggrieved.  Thus  the  mapping  out  of  a  road 
is  not  an  immediate  grievance.^  Officers  of  the  locali- 
ties may  as  private  individuals  appeal  in  the  interest 
of  their  locality .^  In  the  fourth  place,  while  this  sort 
of  administrative  jurisdiction  is  enumerated  in  the 
statutes  still  the  statutes  have  been  based  on  general 
principles  in  allowing  these  appeals.  These  are  that 
the  appeal  is  only  granted  where  the  rights  of  personal 
liberty  and  private  property  are  involved.^ 

While  in  the  United  States  the  statutes  granting  a 
power  of  appealing  from  the  decisions  of  the  adminis- 
trative  officers  to  the  courts  of  quarter  sessions  or 
county  courts,  which  have  largely  taken  their  place, 
are  not  nearly  so  numerous,  still  we  do  find  not  a  few 
instances  of  them.  Thus  in  New  York  any  one  inter- 
ested may  appeal  to  the  county  court  from  the  decision 
of  the  superintendent  of  the  poor  as  to  the  settlement 
of  a  poor  person.^  An  instance  of  a  similar  power  of 
appeal,  though  in  this  case  the  appeal  does  not  go  to 

^  Rexv.  Hanson,  4  B.  &  Aid. ,  521.  ^  Rex  v.  Middlesex  J  J.,  i  Chitty  Rep.,  366. 

«  Still  V.  Brennan,  41  L.  J.  M.  C,  85.    *  Rex  v.  Colbeck,  ii  Ad.  &  El.,  161. 
*Gneist,  Das  EnglischeVerwaltungsrecht^  1884,  397,  *  L.  1872,  c.  38. 


2i6     CONTROL  OVER  THE  ADMINISTRATION. 

the  county  court,  is  the  power  given  to  any  individual, 
who  has  been  refused  a  patent  for  an  invention  by  the 
commissioner  of  patents,  to  appeal  from  this  decision 
to  the  supreme  court  of  the  District  of  Columbia.^ 

2.  Special  case. — A  most  notable  example  of  these 
attempts  to  supplement  the  administrative  jurisdiction 
of  the  higher  courts  is  to  be  found  in  the  English 
habit  of  stating  a  special  case.  This  habit,  as  has  been 
indicated,^  originated  in  a  clause  in  the  commission  of 
the  justices  of  the  peace  which  enjoined  upon  them  to 
ask  the  advice  of  the  royal  judges  in  cases  where  they 
were  in  doubt.  These  special  cases  are  mostly  state- 
ments of  facts,  are  made  up  in  both  the  quarter  and 
the  special  sessions,  and  go  up  to  the  higher  courts 
which  decide  the  matter  for  the  justices.  At  first  the 
decision  of  the  royal  courts  was  only  consultative  in 
character,  the  justices  not  being  bound  by  it,  but  the 
judicature  act  of  1873  has  made  the  decision,  it  is  be- 
lieved, binding  upon  the  justices  and  mandatory.^  The 
courts  have  all  alone  encouraged  the  sending  up  of 
these  special  cases  which  have  almost  replaced  the 
certiorari.'^  As  a  general  rule  the  allowance  of  a 
special  case  is  in  the  discretion  of  the  justices.^  On  a 
special  case  the  courts  do  not,  as  a  rule,  interfere  with 
the  discretion  of  the  justices.^  The  special  case,  while 
not  common  in  the  United  States,  is  not  unknown  to 
the  American  law. 

^  U.  S.  Rev.  Stats.,  sec.  491 1.  This  is  in  place  of  the  administrative  appeal 
to  the  head  of  department  ;  Butterworth  v.  U.  S.,  112  U.  S.,  50,  57. 

2  Supra,  II.,  p.  196. 

'Wallsall  V.  Ry.  Co.,  48  L.  J.  M.  C,  65. 

*Gneist,  Das  Englische  Verwaliungsreckt,  1884,  407;  Smith,  Practice  at 
Quarter  Sessions,  518-520. 

5  Ex  parte  Jarvin,  9  Dowl.  P.  C.  120.     But  see  Smith,  op.  cit,,  521. 

•Rex  v.  Ry^  Co.,  43  L.  J.  M.  C,  57  ;  Rex  v.  Kent,  JJ.,  41  J.  P.,  263. 


CHAPTER  VI. 

THE   ADMINISTRATIVE    JURISDICTION    IN    FRANCE. 

/. — History, 

In  France,  as  has  been  said,  tbe  administrative  juris- 
diction has  been  given  to  special  courts.  France  may 
be  said  to  have  founded  the  modern  system  of  special 
administrative  courts.  Even  before  the  revolution 
France  possessed  special  administrative  courts.  Some 
of  these  were  independent  of  the  active  administration, 
and  had  been  established  simply  as  a  result  of  the 
application  of  the  economic  principle  of  the  division  of 
labor.  Such  e.g.  were  the  court  of  moneys  and  the 
chamber  of  accounts.  But  by  the  side  of  these  tri- 
bunals there  grew  up  in  the  17th  century  new  authori- 
ties completely  dependent  upon  the  active  administra- 
•tion,  and  purposely  made  dependent  upon  it  in  order 
that  the  administration  might  have  perfect  freedom  of 
action  in  its  endeavor  to  perform  the  greater  taskg 
imposed  upon  it  as  a  result  of  the  great  increase  of  the 
powers  of  the  Crown.^  While  in  England  as  late  as 
1701  the  ordinary  courts  were  under  the  control  of  the 
Crown,  and  there  was  consequently  no  need,  in  order 
to  make  the  administration  independent  in  action,  of 
forming  special  administrative  courts,  in  France  the 

^Aucoc,  op.  cit.,  I.,  396,  397. 
217 


2i8     CONTROL  OVER  THE  ADMINISTRATION, 

ordinary  judicial  bodies  were  quite  independent  of  the 
Crown.  The  chief  judicial  bodies  in  France  before 
1789  were  the  parliaments,  and  their  members  were 
independent  of  the  Crown  as  a  result  of  the  fact  that 
the  position  of  member  of  parliament  was  venal  and 
bought  and  sold  as  property.  The  powers  of  these 
parliaments  were  never  clearly  defined,  and  in  the 
general  confusion  of  the  time  as  to  the  distribution 
of  the  three  great  so-called  powers  of  government, 
the  parliaments  often  tried  to  assume  a  control  over 
the  actions  of  the  administration.  When  Louis  XVI 
came  to  the  throne  in  1774,  it  was  seen  that  great 
reforms  in  the  administration  of  the  government  and 
in  the  social  conditions  of  the  people  must  be  under- 
taken. For  this  purpose  the  King  chose  Turgot  as  one 
of  his  ministers.  The  reforms  which  Turgot  endeavored 
to  introduce  did  not  meet  with  the  approval  of  the 
privileged  classes.  As  the  parliaments  were  composed 
of  members  of  the  privileged  classes  they  opposed  these 
reforms,  refused  to  register  the  various  edicts  issued  by 
the  King,^  encroached  upon  the  royal  power  by  them- 
selves issuing  decrees,  and  tried  to  hinder  the  action  of 
the  royal  officers  by  issuing  commands  to  them  and 
citing  them  to  appear  before  the  parliaments  to  answer 
complaints  made  against  them.^  When  the  liberal  ele- 
ments obtained  control  of  the  Constituent  Assembly, 
this  action  of  the  parliaments  was  remembered  and  the 
principle  already  enunciated  by  Montesquieu  that  the 
three  so-called  powers  of  government  must  be  entrusted 
to  different  and  independent  authorities,  was  incor- 
porated in  the  celebrated"^^  declaration  of  the  rights  of 

^  Such  e.  g.  was  their  action  as  to  the  edict  abolishing  the  corvee  or  enforced 
labor  of  the  peasants  on  public  works.  *  Aucoc,  op.  cit.,  I.,  17,  52. 


FRENCH  ADMINISTRA  TIVE  JURISDICTION.     219 

man  and  of  the  citizen."  ^  The  administrative  authori- 
ties were  made  completely  independent  of  the  Judiciary,^ 
and  judges  were  forbidden  under  pain  of  forfeiting 
their  positions  to  interfere  in  any  way  whatever  with 
the  acts  of  the  officers  of  the  administration  or  to  cite 
them  before  them  for  the  performance  of  their  duties.^ 
For  said  the  Constituent  Assembly : 

The  constitution  will  be  equally  violated,  if  the  judiciary  may 
meddle  with  administrative  matters  and  trouble  administrative 
officers  in  the  discharge  of  their  duties,  .  .  .  Every  act  of 
the  courts  of  justice  which  purports  to  oppose  or  arrest  the  action 
of  the  administration  being  unconstitutional,  shall  be  void  and  of 
no  effect.  * 

Thus  the  desire  of  the  absolute  monarchy  t®  free 
the  administration  from  all  judicial  control  was  realized 
by  the  revolution.  This  is  the  origin  of  the  great  prin- 
ciple of  the  independence  of  the  administration  which 
permeates  all  French  law.  Its  adoption  in  modern 
times  is  due  in  great  part  to  the  fact  that  the  ordinary 
judicial  tribunals  had  hampered  the  administration  in 
its  work  of  reform  in  the  17th  and  18th  centuries, 
which  they  were  able  to  do  as  a  result  of  their  position 
of  independence  over  against  the  Crown. 

In  order,  however,  to  offer  the  individual  some 
remedy  against  the  decisions  of  the  subordinate  officers 
of  the  administration,  there  was  formed  a  most  ex- 
tended system  of  appeals  from  the  subordinate  to  the 
higher  administrative  authorities.  This  it  was  easy  to 
form  in  France  on  account  of  the  formation  after  the 
revolution  of  a  most  centralized  system  of  administra- 

^  Art.  xvi. 

'L.,  Dec.  22,  1789-Jan.  8,  1790,  sec.  iii.,  art.  7. 

*  L.,  Aug.  16-24,  1790,  title  ii.,  art.  15. 

*  Instructions  to  the  law  last  cited,  Lois  et  AcUsdu  Gouverntment^  I.,  98. 


220     CONTROL  OVER  THE  ADMINISTRATION, 

tion.^  Care  was  soon  taken  to  give  the  power  to  decide 
the  most  important  of  these  appeals  to  authorities  not 
immediately  connected  with  the  active  administration.^ 
The  active  administration  thus  ceased  to  be  at  the 
same  time  party  and  judge.  The  plan  was  so  success- 
ful, that  the  jurisdiction  of  the  most  important  of  these 
administrative  tribunals,  as  they  were  called,  has  been 
gradually  extended  until  this  administrative  jurisdic- 
tion is  now  really  more  extensive  than  that  possessed 
by  the  ordinary  judicial  courts  in  the  English  and 
American  system. 

//. — Reasons  for  the  retention  of  the  system. 

1.  Need  of  special  courts. — While  this  method  of 
judicial  control  over  the  administration  was  adopted 
largely  as  a  result  of  peculiar  local  conditions,  it  has 
been  retained  for  purely  practical  reasons.  In  the  first 
place  the  special  character  of  the  matters  which  are 
embraced  within  the  administrative  jurisdiction  re- 
quires, it  is  believed,  for  their  satisfactory  treatment 
special  knowledge,  which  judges  who  devote  most  of 
their  time  to  the  consideration  of  questions  of  private 
law  cannot  be  expected  to  possess.  Different  habits 
of  thought  and  a  practical  knowledge  of  administra- 
tive law,  to  be  obtained  for  the  most  part  by  direct 
contact  with  active  administrative  work,  are  regarded 
by  the  advocates  of  special  administrative  courts  as 
essential.  It  is  believed  that  these  qualities  are  essen- 
tial not  only  to  the  government  but  also  to  the  indi- 
vidual.    French  experience  has   shown  in  those  few 

^  See  <?.  g.  L.,  Sept.  7-11,  1790,  which  provided  for  appeals  in  tax  matters, 
and  L.,  Dec.  14,  1789,  arts.  55  and  60,  cited  in  Aucoc,  I.,  399,  400. 
»L.  7&pluvi6se  an  VIII  (1800),  art.  14. 


FRENCH  A DMINISTRA  TIVE  JURISDICTION.     2 2 1 

instances  where  the  decisions  of  the  ordinary  judicial 
courts  and  those  of  the  administrative  courts  relative 
to  private  rights  are  capable  of  comparison,  that  the 
decisions  of  the  administrative  courts  have  been  more 
favorable  to  private  rights  than  those  of  the  judicial 
courts.  The  tendency  of  the  ordinary  private  law 
judge  when  confronted  with  an  administrative  ques- 
tion is  to  apply  to  it  the  rules  of  private  law,  which 
often  lead  him  into  errors  and  result  in  too  great 
technicality. 

2.  Need  of  an  inexpensive  and  informal 'procedure,— ^ 
A  further  reason  for  the  retention  of  the  special 
administrative  courts  is  the  desirability  of  an  inexpen- 
sive and  informal  procedure  such  as  is  not  to  be  found 
in  the  ordinary  procedure  of  the  civil  courts.  In  case 
of  a  conflict  between  the  administration  and  the  indi- 
vidual the  contestants  are  not  on  a  par  as  in  an  ordi- 
nary suit  is  usually  the  case ;  and  it  is  desirable,  as 
far  as  may  be,  to  encourage  individuals  to  bring  suits 
against  the  officers  of  the  administration  in  order  to 
prevent  an  over-zealousness  on  the  part  of  the  admin- 
istration to  the  detriment  of  private  rights.^ 

///. —  The  general  characteristics  of  the  French  system. 

1.  Administrative  courts,  courts  of  enumerated  juris- 
diction.— The  general  rule  is  the  same  now  that  it  was 
at  the  time  of  the  Constituent  Assembly,  viz.,  that  the" 
decision  of  all  confl.icts  between  the  administration  and 
individuals,  and  the  interpretation  of  all  administrative 
acts  are  reserved  to  the  active  administration.  The 
ordinary  courts  are  forbidden  to  interfere  in  any 
way  with  administrative  action,  even  to  interpret  an 

1  Cf.  Aucoc,  I.,  401-8. 


222     CONTROL  OVER  THE  ADMINISTRATION. 

administrative  act  of  individual  application  which 
comes  before  them  collaterally.  This  can  be  done  only 
by  the  administration/  There  are,  however,  excep- 
tions to  this  rule.  Thus  the  ordinary  courts  have  as  a 
result  of  special  statutory  provision  the  entire  control 
of  the  matter  of  expropriation  or  the  exercise  of  the 
right  of  eminent  domain.'^  Again  arrests  made  by  the 
administration  are  under  the  control  of  the  ordinary 
courts  as  a  result  of  the  penal  code.^ 

On  the  other  hand,  as  a  result  of  the  grant  to  the 
ordinary  judicial  courts  of  the  application  of  the  pri- 
vate and  the  criminal  law,  the  general  rule  is  that  the 
courts  have  control  of  all  contracts  made  by  the  ad- 
ministration and  the  entire  police  jurisdiction.  This 
general  rule  is  subject  to  several  exceptions.  Thus  all 
contracts  made  by  the  central  or  local  administration 
relative  to  public  works  and  to  public  lands  and  all 
contracts  of  the  central  administration  relative  to  the 
public  domain  and  for  material  or  supplies  of  personal 
property  are  put  into  the  jurisdiction  of  the  adminis- 
trative courts.  Further  certain  of  the  administrative 
courts  have  a  certain  amount  of  police  jurisdiction,  but 
not  much.^  But  the  usual  rule  is  that  the  administra- 
tion has  the  jurisdiction  of  all  administrative  acts  and 
of  administrative  acts  alone.  In  certain  cases,  how- 
ever, which  have  been  growing  more  and  more  numer- 
ous during  this  century,  the  statute  law  states  specifi- 
cally that  the  decision  of  complaints  against  certain 
classes  of  administrative  acts  shall  be  made  not  by  the 
active  administration,  but  by  bodies  called  administra- 
tive courts,  which  are  in  large  part  unconnected  with 

*  Aucoc,  I.,  424.  ^  L.,  May  3,  1841,  ^  Arts.  119  and  120. 

*  Simonet,  Droit  Public  Administratif,  157,  and  laws  cited. 


FRENCH  ADMINISTRA  TIVE  JURISDICTION,     223 

it.  Each  of  these  bodies  has  to  decide  in  the  particular 
cases  provided  in  the  statutes.  The  result  is  that  the 
administrative  courts  are  courts  of  enumerated  jurisdic- 
tion. The  particular  grants  of  jurisdiction  are,  how- 
ever, so  numerous  that,  though  in  theory  courts  of 
enumerated  jurisdiction,  the  important  administrative 
courts  are  practically  courts  of  general  jurisdiction. 
This  is  true  of  the  Council  of  State  and  the  councils  of 
the  prefecture. 

2.  Jvdges  not  independent  of  the  (tdministration, — 
The  judges  of  the  administrative  courts  do  not  possess 
the  same  independent  tenure  that  is  possessed  by  the 
judges  of  the  ordinary  courts.  They  are  all  appointed 
and  may  at  any  time  be  removed  by  the  President  of 
the  republic.  This  is  undoubtedly  a  great  theoretical 
objection  to  the  French  system,^  but  in  practice  their 
weakness  of  tenure  over  against  the  administration 
does  not  appear  to  have  had  any  appreciable  influence 
on  their  decisions.  As  has  been  shown,  where  it  is; 
possible  to  compare  the  decisions  of  these  courts  with 
those  of  the  ordinary  courts  it  is  found  that  the  de- 
cisions of  the  administrative  courts  have  as  a  general 
thing  shown  more  regard  and  consideration  for  private 
rights  than  those  of  the  ordinary  courts,  whose  judges 
have  a  fixed  tenure  of  office.  The  reason  why  this 
precarious  tenure  has  been  retained  in  the  French 
system,  notwithstanding  the  advances  that  have  been 
made  in  other  directions  during  this  century  in  the 
development  of  these  administrative  courts,  is  that  it 
is  believed  necessary,  in  order  that  the  administrative 
judges  may  have  the  necessary  knowledge  of  adminis- 
trative affairs,  that  they  be  continually  engaged   in 

'  Cf.  Dicey,  The  Law  of  the  Constitution,  3d  Ed.,  312. 


224     CONTROL  OVER  THE  ADMINISTRATION. 

active  administrative  work.  Therefore  the  administra- 
tive courts  are  at  the  same  time  administrative  councils, 
which  are  being  continually  called  upon  to  advise  the 
administration ;  and  it  is  felt  in  a  country  like  France, 
where  the  belief  in  the  necessity  of  administrative  cen- 
tralization is  so  strong,  that  it  would  be  unwise  to  relax 
the  usual  administrative  control  over  the  members  of  the 
administrative  councils.  This  argument,  however,  seems 
to  have  really  little  weight.  Of  course  the  desirability 
of  the  possession  by  the  administrative  judges  of  special 
administrative  knowledge  cannot  be  gainsaid.  The 
success  of  the  English  courts  of  quarter  sessions  is  too 
great  to  permit  the  proposition  to  be  questioned.  But 
to  attain  this  result  it  does  not  seem  necessary  that 
administrative  judges  shall  be  dependent  upon  the 
administration.  The  tenure  of  the  English  justices  of 
the  peace,  though  in  theory  not  protected  against  the 
administration,  is  in  reality  protected,  inasmuch  as  any 
ministry  which  should  attempt  to  dismiss  them  from, 
office  for  reasons  other  than  absolute  corruption  would 
have  to  assume  a  most  grave  responsibility  before 
Parliament.^  Again,  as  will  be  shown  later,  the  tenure 
of  the  judges  of  the  administrative  courts  which  have 
been  lately  formed  in  Prussia  is  made  the  same,  as  far 
as  its  independence  is  concerned,  as  that  of  the  ordi- 
nary judges.  It  is  possible  in  other  ways  to  ensure 
that  the  administrative  judges  will  have  the  necessary 
special  knowledge  of  administrative  affairs. 

3.  Judges 'professional  in  character. — The  character 
of  all  the  judges  of  the  most  important  administrative 
courts  is  professional.  That  is,  they  all  must  have 
had  a  certain  theoretical  or  practical  administrative 

^  Supra,  II.,  p.  197. 


FRENCH  ADMINISTRA  TIVE  JURISDICTION.     225 

training,  must  be  learned  in  the  law ;  they  receive  a 
large  salary  also,  and  are  not  permitted  to  have  any 
other  occupation  or  profession.  In  most  of  the  im- 
portant administrative  courts  there  is  in  addition  to 
the  judges  a  representative  of  the  government.  Such 
officer  differs  very  much  from  an  ordinaiy  advocate. 
He  is  rather  an  amicus  curixB  whose  duty  is  to  advise 
the  court  on  difficult  points,  and  to  endeavor  as  far  as 
possible  to  see  that  justice  and  right  are  done  even  to 
the  detriment  of  the  particular  claim  which  the  gov- 
ernment may  be  making  at  the  time.^  This  is  not 
simply  his  theoretical  position.  Nothing  is  more  com- 
mon than  to  see  such  officer  actually  advocating  the 
views  which  have  been  set  forth  by  the  individual  who 
is  protesting  against  some  particular  administrative  act. 
4.  Great  freedom  of  appeal. — In  the  administrative 
courts  there  is  an  almost  unlimited  power  of  appealing 
from  the  decisions  of  the  lower  courts  to  the  higher 
court.  On  these  appeals  questions  both  of  law  and  fact 
may  be  reviewed.  There  are  very  few  of  the  courts 
which  decide  at  the  same  time  in  first  and  last  instance 
on  questions  of  fact  and  none  but  the  supreme  court, 
the  Council  of  State,  which  so  decides  on  questions  of 
law.  This  power  of  appeal  is  not  limited  by  the 
amount  in  question.  It  is  possible  to  go  up  to  the 
Council  of  State  in  order  to  claim  a  reduction  of  a  few 
centimes  on  a  personal  property  tax  for  example.  The 
French  have  felt  this  is  necessary  in  order  to  check 
the  too  great  zeal  of  subordinate  officers.  For  when 
the  contest  is  between  the  government  and  the  indi- 
vidual the  consequence  of  the  commission  of  injustice 
cannot  be  measured  by  the  amount  at  stake.     The 

^  Aucoc,  op.  cit.,  I.,  415. 


VOL.  II— 15 


/fiirA 


226     CONTROL  OVER  THE  ADMINISTRATION. 

power  of  appeal  has  further  been  increased  by  the 
provision  that  in  certain  matters  of  especial  importance 
costs  are  done  away  with  altogether  or  are  very  largely 
reduced  in  amount,  while  the  procedure  has  purposely 
been  made  very  simple.  It  is  to  a  large  extent  in 
writing,  and  is  of  a  somewhat  inquisitorial  character. 
That  is,  the  judges  are  not  confined  in  their  considera- 
tion of  the  case  to  what  is  laid  before  them,  but  may 
take  such  measures  as  they  see  fit  to  get  at  the  truth. 
To  a  very  large  extent,  the  necessary  action  of  a 
plaintiff  in  a  suit  in  an  administrative  court  consists 
simply  in  laying  his  complaint  before  the  court  which 
then  attends  to  the  rest.* 

i 

IV. — Nature  of  the  remedies. 

1.  The  general  jurisdiction  of  the  administ/rative 
courts. — The  general  jurisdiction  of  the  administrative 
courts,  the  jurisdiction  which  all  the  courts  possess 
over  those  matters  which  have  been  assigned  to  them 
by  law,  what  the  French  call  the  contentieux  ad/minis- 
t/ratif,  has  been  worked  out  by  the  administrative 
courts  themselves  in  their  decisions,  although  the 
actual  administrative  matters  over  which  they  have 
this  jurisdiction  are  designated  in  the  statutes.  This 
general  jurisdiction  consists  in  deciding  complaints 
made  by  individuals  against  those  non-political  acts  of 
the  administrative  authorities  of  special  and  not  general 
application,  whose  immediate  effect  is  to  violate  the 
rights  of  individuals  acquired  by  virtue  of  some  statute, 
ordinance,  or  a  contract.  Almost  every  word  of  this 
definition  is  essential. 

In  the  first  place  it  is  to  be  noticed  that  the  act  must 

^  Cf.  Aucoc,  op.  cit.,  I.,  411-423. 


FRENCH  ADMINISTRA  TIVE  JURISDICTION.     227 

be  non-political  in  character  in  order  that  the  adminis- 
trative courts  may  hear  complaints  against  it.  What 
is  a  political  act  it  is  difficult  to  say.  The  legislature 
has  not  defined  it.  In  order  therefore  to  determine 
what  is  such  a  political  act  we  must  have  recourse  to 
the  decisions  of  the  administrative  courts  themselves. 
These  have  held  that  acts  are  political  in  character 
which  are  performed  by  the  President  in  carrying  on 
the  relations  of  the  executive  with  the  other  govern- 
mental authorities  and  which  relate  to  the  carrying  on 
of  war,  of  diplomatic  relations,  and  to  domestic  peace 
and  tranquillity.^  The  only  acts  of  this  class  w^hich 
need  special  notice  are  those  which  relate  to  the  do- 
mestic  peace  and  tranquillity.  The  tendency  of  the 
decisions  of  the  administrative  courts  has,  it  must  be 
admitted,  been  to  relieve  the  administration  from  all 
judicial  control  for  acts  which  have  been  extremely 
arbitrary  in  character  and  very  -  restrictive  of  private 
rights,  where  by  such  acts  the  administration  was 
attempting  to  ensure  domestic  peace  and  tranquillity. 
The  decisions  have  held  that  in  time  of  public  disturb- 
ance measures  taken  by  the  administration  to  prevent 
the  publication  of  a  journal  which  the  administration 
alleged  was  inflaming  the  passions  of  the  people, 
measures  which  resulted  in  the  complete  destruction 
of  the  plant  of  the  journal,  were  of  a  political  character 
and  were  not  subject  to  the  control  of  the  adminis- 
trative courts.^  The  tendency  of  these  decisions  is  not 
regarded  favorably  by  several  of  the  French  writers.^ 
In  the  second  place  in  order  to  give  the  administra- 

'  Laferri^re,  La  yuridiction  Administrative,  II.,  32. 

'  Con.  d'Etat,  Arrtts  of  Feb.  26,  1857  ;  May  9,  1867,  cited  in  Ducrocq,  op. 
cit.,  sec.  64  ;  cf.  Aucoc,  I.,  441  ei  seq. 
8  Cf.  Simonet,  Droit  Public,  etc.,  155. 


228     CONTROL  OVER  THE  ADMINISTRATION. 

tive  courts  jurisdiction  the  act  complained  of  must  be 
of  special  and  individual  and  not  of  general  applica- 
tion, i,  e,  it  cannot  be  an  ordinance.^  There  is  a  special 
remedy  against  ordinances  which  will  be  alluded  to 
later. 

In  the  third  place  the  act  must  have  for  its  imme- 
diate, not  its  indirect  and  ultimate,  effect,  the  violation 
of  a  right.  Thus  a  prefect  authorizes  a  commune  to 
sell  or  close  up  a  road  which  he  and  it  regard  as  use- 
less. A  private  individual  may  think  that  the  par- 
ticular road  belonged  to  him ;  he  cannot  on  that 
account,  however,  appeal  to  the  administrative  courts 
against  the  prefect's  decision.  For  his  right  is  not 
violated  until  the  commune  actually  attempts  to  sell 
the  road.  Then  and  only  then  may  he  appeal.^  This 
it  will  be  noticed  is  similar  to  the  English  distinction, 
is  the  matter  of  appeals  to  the  court  of  quarter  sessions 
between  immediate  and  consequential  grievances. 
Further  it  must  be  noticed  in  this  connection  that  the 
act  must  actually  violate  a  right  and  must  not  be 
simply  contrary  to  the  interest  of  the  individual  com- 
plaining. This  distinction  between  the  violation  of  a 
right  and  the  failure  to  consider  an  interest  may  be 
made  plain  by  an  example.  The  French  law  forbids 
any  citizen  to  change  his  name  without  the  authoriza- 
tion of  the  President.  No  person  is  considered  as 
having  a  right  to  change  his  name,  and  in  refusing  to 
authorize  a  change  of  name  the  President  violates  no 
right.  Therefore  no  one  can  appeal  from  the  decision 
of  the  President,  refusing  the  necessary  authorization, 

^  Ducrocq,  I.,  sec.  247. 

^  Arrit  du  Con.  d'j^iat,  ]a.n.  24,  185 1  ;  Affaire  DMizet,  cited  in  Aucoc,  I., 
432. 


FRENCH  ADMINISTRATIVE  JURISDICTION.    229 

to  the  administrative  courts.  But  in  case  such  a  deci- 
sion of  the  President  does  authorize  a  change  of  name, 
the  right  of  a  third  person  may  be  violated,  since  a 
family  name  is  considered  by  the  French  law  to  be  in 
the  nature  of  a  property  right.  Therefore  an  appeal 
is  allowed  to  an  interested  third  person  from  the  deci^ 
sion  of  the  President  permitting  an  individual  to 
assume  the  family  name  of  the  interested  third  party.* 
What  is  a  right  and  what  is  an  interest  have  been 
worked  out  in  the  decisions  of  the  administrative 
courts.  While  this  is  the  general  rule  exceptions  have 
been  made  in  particular  cases  by  statute,  but  they  are 
not  important. 

2.  Appeal  to  the  Cowncil  of  State  for  excess  of  powers, 
— A  second  remedy  is  offered  in  the  power  granted  to 
any  individual  to  appeal  to  the  Council  of  State  against 
any  act,  not  of  a  political  character,  of  any  adminis- 
trative authority,  on  the  ground  that  such  authority 
has,  in  the  performance  of  the  act  complained  of,  ex- 
ceeded its  powers  or  violated  the  law.  This  appeal  is 
permitted  even  if  the  act  complained  of  is  of  general 
application  and  even  if  it  does  not  violate  a  right. 
This  remedy,  like  the  contentieux  administ/r.atif  was 
worked  out  by  the  administrative  courts,  but  has  been 
given  recently  the  sanction  of  statute,  the  lawi  of  May 
24,  1872,  providing  Hhat  the  "  Council  of  StateWecides 
finally  on  all  demands  to  annul  for  excess  of  Bbwers 
acts  of  administrative  authorities."  In  what  iltfw  does 
an  excess  of  powers  consist  ?  When  do  we  find  a  vio- 
lation of  the  law  ?  The  decisions  of  the  Council  of 
State  hold  that  there  is  an  excess  of  powers  :  when  an 

*  Ducrocq,  op.  cit.,  I.,  234,  citing  ArrH  du  Con.  d'£tat,  Aug.  16,  1862. 
«  Art.  9. 


230     CONTROL  OVER  THE  ADMINISTRATION. 

administrative  authority  encroaclies  upon  the  compe- 
tence of  some  other  authority,  whether  that  other 
authority  be  the  legislative  authoiity,  a  judicial  au- 
thority, or  another  administrative  authority  ^ ;  when 
an  administrative  authority  does  not  follow, the  for- 
malities laid  down  in  the  law  as  necessaiy  ^ ;  and  when 
an  administrative  authority,  even  when  acting  within 
its  competence  and  following  the  necessary  formalities, 
uses  its  discretionary  power  for  purposes  other  than 
those  for  which  the  power  was  granted.^  The  follow- 
ing case  will  give  a  good  example  of  this  last  kind  of 
excess  of  powers.  It  is  almost  as  famous  in  the  French 
law  as  the  ship-money  case  of  John  Hampden  is  in  the 
English  law,  or  the  case  of  the  miller  of  Sans-Souci  is 
in  the  law  of  Prussia.  The  French  law  gives  to  the 
prefect  the  right  to  regulate  the  movement  of  carriages 
about  railway  stations  in  the  interest  of  public  order, 
i.  e.  the  police  power.  In  order  to  obtain  regular  com- 
munications between  the  railway  station  at  Fontaine- 
bleau  and  the  city  itself,  the  railway  company  entered 
into  negotiations  with  an  owner  of  carriages  to  meet 
all  trains.  This  man  demanded  a  monopoly.  At  the 
request  of  the  company  the  prefect  issued  an  ordinance 
which  forbade  all  carriages  but  those  of  the  contractor 
to  enter  the  court  of  the  railway  station.  The  pro- 
prietor of  a  hotel  in  Fontainebleau,  who  had  been  in 
the  habit  of  sending  an  omnibus  to  meet  travellers  at 
the  station,  sent  an  omnibus  as  before  and  was  prose- 
cuted for  it.  He  appealed  to  the  Council  of  State,  on 
the  ground  that  the  prefect  had  made  use  of  the  police 
power  to  grant  a  monopoly,  and  the  Council  of  State 
annulled  the  ordinance.     This  case  is  interesting  for 

^  For  example  see  Aucoc,  op.  cit.,  I.,  466.  ^  Ibid.  ^  Ibid.,  At^'j. 


FRENCH  ADMINISTRA  TIVE  JURISDICTION,     231 

several  reasons.  First  it  gives  a  good  idea  of  what  the 
French  call  a  detournement  du  pouvoir^  in  the  second 
place  it  shows  that  the  remedy  of  appeal  for  excess  of 
powers  may  be  made  use  of  against  an  act  of  general 
application,  /.  e,  an  ordinance.  In  the  third  place  it 
illustrates  the  great  regard  which  the  administrative 
courts  have  for  private  rights — a  regard  which  is 
greater  than  that  of  the  ordinary  Judicial  courts.  For 
the  ordinance  of  the  prefect  in  question  was  a  penal 
ordinance,  and  therefore,  in  accordance  with  the  gen- 
eral principles  of  the  French  law,  was  to  be  enforced 
by  prosecution  before  the  police  courts,  from  which 
appeal  might  be  taken  to  the  highest  of  the  ordinary 
courts.  Now  before  appealing  to  the  Council  of  State 
the  hotel  proprietor  in  this  case  had  been  prosecuted 
and  condemned  to  pay  the  penalty  affixed  to  the  ordi- 
nance, although  the  police  courts  had  the  right  to 
refuse  to  enforce  the  ordinance  on  the  ground  that  it 
was  not  legally  made.  On  appeal  to  the  Court  of  Cas- 
sation, the  highest  of  the  ordinary  courts,  this  judgment 
had  been  affirmed,  and  it  was  only  after  exhausting  the 
jurisdiction  of  the  ordinary  courts  that  the  hotel  pro- 
prietor decided  to  avail  himself  of  his  appeal  to  the 
Council  of  State  which,  as  has  been  said,  overturned 
the  ordinance,  notwithstanding  that  the  highest  judicial 
court  had  decided  that  it  was  legal.* 

The  interpretation  of  the  words  "  acts  of  administra- 
tive authorities  "  contained  in  the  law  of  1872  is  equally 
as  broad  as  that  given  to  the  phrase  "  excess  of  powers." 
These  words  are  held  by  the  decisions  of  the  Council 

^  See  Arrits  du  Con.  d*£tat,  Feb.  25,  1864,  affaire  Lesbats,  June  7,  1865, 
Arrits  de  la  Gourde  Cassation^  Dec.  6,  1862  ;  Aug.  25,  1864,  cited  in  Bulletin 
de  la  Society  de  Legislation  Comparee,  1872-3,  229  ;  cf.  Aucoc,  op.  cit.,  I.,  467. 


232     CONTROL  OVER  THE  ADMINISTRATION. 

of  State  to  mean  every  act  of  every  administrative 
authority,  with  the  exception  of  political  acts ;  and  of 
late  years  the  tendency  of  the  decisions  has  been  to 
take  jurisdiction  of  many  political  acts  in  extreme  cases.^ 
The  remedy  of  appeal  for  excess  of  powers  differs 
considerably  in  its  character  and  its  effects  from  the 
ccmtentievjx  administratif.  While  as  a  result  of  the 
exercise  of  the  contentieux  adminisi/ratif  the  admin- 
istrative courts  may  review  and  amend  the  decision 
complained  of,  even  if  this  involves  the  consideration 
of  questions  of  fact  and  expediency,  the  Council  of 
State  may,  when  appeal  is  made  to  it  on  the  ground  of 
excess  of  powers,  simply  annul  the  act  complained  of 
and  may  not  amend  it  or  substitute  another  decision 
for  the  one  appealed  from,  and  will  necessarily  con- 
sider questions  of  law  almost  alone.  The  remedy  is 
therefore  much  like  the  certiorari  at  common  law.  It 
also  discharges  somewhat  the  same  function  as  the 
prohibition  or  injunction.  For  while  the  mere  appeal 
to  the  Council  of  State  is  not  suspensive,  L  e.  does  not 
prevent  the  official  whose  act  is  complained  of  from 
going  on  and  enforcing  it,  the  Council  of  State  may,  if 
it  sees  fit,  declare  that  the  appeal  in  the  particular  case 
shall  have  suspensive  effect,  or  may  transmit  the  papers 
in  the  case  to  the  proper  minister  and  call  his  attention 
to  the  demand  of  the  plaintiff  that  the  appeal  shall 
be  suspensive.  The  minister  may  then  order  all 
administrative  proceedings  to  be  stopped.^  This  is 
practically  equivalent  to  a  temporary  injunction.  The 
other  administrative  courts  do  not  seem  to  have  power 
to  declare  that  an  appeal  to  them  shall  prevent  the 

'Ducrocq,  op.  ciU,  I.,  sec.  252  ;  Aucoc,  op.  cit.,  I.,  sec.  300. 
'Laferriere,  op.  cit.,  I.,  289,  290. 


FRENCH  ADMINISTRATIVE  JURISDICTION     233 

officer  whose  act  is  complained  of  from  acting.  But 
as  in  practically  all  cases,  where  an  absolutely  illegal 
act  is  complained  of,  the  appeal  against  it  goes  to  the 
Council  of  State  on  the  ground  of  excess  of  powers,  the 
power  possessed  by  the  Council  of  State  is  amply 
sufficient  to  protect  individual  lights.  Finally  it  is 
to  be  noticed  that  France  is  the  only  country,  whose 
laws  are  under  consideration,  which  permits  such  a 
remedy  to  be  made  use  of  against  the  acts  of  the 
highest  officers  of  state,  including  even  the  chief 
executive.  The  fact  that  the  members  of  the  Council 
of  State  are  dependent  in  tenure  upon  the  President 
of  course  will  tend  to  prevent  an  immoderate  use  of 
their  power. 

V, —  The  administrative  courts, 

1.  General  administrative  courts.  The  councils  of  the 
'prefecture, — While  the  councils  of  the  prefecture  may 
be  called  general  administrative  courts,  they  are  not 
courts  of  general  jurisdiction.  But  the  statutes  con. 
f erring  jurisdiction  upon  them  are  so  numerous  that 
they  have  a  much  wider  jurisdiction  than  any  of  the 
other  lower  administrative  courts,  and,  in  point  of  fact, 
do  have  jurisdiction  over  almost  all  important  conflicts 
that  arise  between  the  administration  in  its  lower 
instances  and  the  individual.  These  councils  are  com- 
posed of  three  or  four  councillors  and  the  prefect,  as 
president,  who,  in  point  of  fact,  seldom  presides,  and 
the  secretary-general  of  the  prefecture,  who  acts  as  the 
representative  of  the  government.  The  councillors, 
who  are  the  real  judges^  are  appointed,  and  may  be 
removed  by  the  President  of  the  republic.  To  be 
appointed  as  councillor  the  applicant  must  be  twenty- 


234    CONTROL  OVER  THE  ADMINISTRATION. 

five  years  of  age,  and  have  either  a  theoretical  or  a 
practical  knowledge  of  administrative  matters.  That 
is,  he  must  be  a  licentiate  in  law,  a  degree  which 
corresponds  somewhat  to  an  American  degree  of 
bachelor  of  laws,  which  admits  to  practice  at  the  bar 
and  is  a  university  degree  given  by  the  faculty  of  law, 
or  he  must  have  served  ten  years  in  the  judicial  or 
administrative  service,  or  for  ten  years  have  been  a 
member  of  a  general  council  of  one  of  the  departments. 
The  functions  of  councillor  of  the  prefecture  are 
salaried,  and  are  by  law  incompatible  with  the  pursuit 
of  any  other  occupation  or  profession.^  The  position 
is  thus  strictly  a  professional  one. 

The  council  of  the  prefecture  is  not  only  an  adminis- 
trative court,  but  is  also  an  administrative  council,  and 
as  such  has  to  advise  the  prefect  often  in  his  adminis- 
tration and  has  in  certain  cases  the  absolute  power  of 
decision.'  It  is  in  this  way  that  the  French  make  it 
certain  that  the  councillors  of  the  prefecture  shall  be 
in  daily  contact  with  the  workings  of  the  active  admin- 
istration, and  will  therefore  be  able  to  decide  with 
understanding  the  various  matters  which  come  up  be- 
fore them  when  they  are  organized  as  a  court. 

The  jurisdiction  of  the  council  is  of  three  kinds.  In 
the  first  place  it  has  the  general  administrative  juris- 
diction, i,  e.  the  contentieux  of  a  long  series  of  matters. 
These  are  the  direct  taxes  and  taxes  assimilated  to  the 
direct  taxes ;  certain  special  questions  of  fact  in  con- 
nection with  the  indirect  taxes,  though  indirect  taxes 
as  a  whole,  are  for  special  reasons  in  the  jurisdiction  of 
the  ordinary  judicial  courts  ;  questions  relative  to  the 
administrative  control  over  the  communes  and  the  in- 

*  L.  June  21,  1865.  »  Supra,  I.,  p.  274. 


FRENCH  ADMINISTRA  TIVE  JURISDICTION.     235 

stitutions  which  the  French  call  public  establishments, 
i,  e.  quasi  public  corporations  ;  questions  relative  to  com- 
munal elections  and  a  series  of  miscellaneous  matters 
which  are  not  susceptible  of  classification,  but  which 
embrace  a  great  many  important  administrative  acts/ 

In  the  second  place  the  councils  of  the  prefecture 
have  a  large  original  jurisdiction  over  the  contracts  and 
torts  made  and  committed  by  the  administration  rela- 
tive to  the  public  works  of  both  the  central  and  local 
administration,  to  the  public  domain  of  the  state,  and 
the  contracts  for  material  and  supplies  of  the  central 
administration.^ 

In  the  third  place  the  council  of  the  prefecture  has 
,a  large  police  jurisdiction  of  violations  of  police  ordi- 
nances relative  to  the  main  roads,  the  draining  of 
marshes  and  quarries.^  This  is  an  exception  to  the 
general  rule  which  is  that  the  entire  police  jurisdiction 
is  given  to  the  ordinary  courts.  The  reason  for  the 
exception  is  to  be  found  in  the  desire  to  give  the  ad- 
ministration great  freedom  of  action.  This  purpose  of 
the  law  has  been  incompletely  attained.  For  the  de- 
cisions of  these  councils  and  of  the  Council  of  State, 
particularly  in  regard  to  violations  of  the  highway 
regulations,  are  here  again  more  favorable  to  private 
rights  than  those  of  the  ordinary  courts,  which  have 
jurisdiction  of  the  violations  of  the  regulations  relative 
to  the  lesser  roads.* 

Finally  the  councils  of  the  prefecture  act  as  boards 
of  audit  for  the  account  of  oflScers  of  quasi  public  cor- 
porations and  of  the  less  important  communes.^ 

^  Aucoc,  op.  cit.,  I.,  495  ;  Laferri^re,  op.  cit.,  I.,  317-321. 
'  Aucoc,  op.  cit.,  I.,  503-512.  ^  Ibid.,  515. 

^Ducrocq,  II.,  sec.  859.  "Aucoc,  I.,  517. 


236     CONTROL  OVER  THE  ADMINISTRATION. 

In  most  of  these  cases  tlie  councils  of  the  prefecture 
decide  finally  but  there  is  always  an  appeal  from  their 
decision  not  only  of  questions  of  law  but  also  of  ques- 
tions of  fact. 

2.  Special  administ/rative  courts. — The  most  import- 
ant of  the  special  administrative  courts,  i.  e.  those  courts 
formed  for  the  decision  of  only  one  or  two  kinds  of 
questions,  are  the  educational  courts  and  the  councils 
of  revision. 

a.  Educational  courts. — There  are  two  grades  of 
these :  first,  the  departmental  council  and  the  academic 
council ;  and  second,  the  superior  council.  These  are 
all  composed  largely  of  ex  officio  members  and  par- 
ticularly  of  persons  engaged  in  the  work  of  education 
and  of  members  of  the  various  recognized  churches.^ 
Like  the  other  administrative  courts  they  are  also 
administrative  councils,  and  as  such  are  to  advise  the 
officers  of  the  educational  administration,  and  have 
quite  a  control  over  the  pedagogical  part  of  primary, 
secondary,  and  superior  education.  As  administrative 
courts  the  departmental  and  academic  councils  hear 
complaints  made  by  teachers  against  the  acts  of  educa- 
tional officers  in  the  primary  and  secondary  branches 
respectively.  Thus  e.  g.  if  the  prefect  should  revoke  a 
teacher's  certificate,  without  which  he  may  not  teach 
in  either  a  public  or  a  private  school,  such  teacher  may 
appeal  to  the  departmental  council  or  the  academic 
council,  according  as  he  is  a  primary  or  secondary 
teacher.  The  academic  council  has  also  jurisdiction  of 
all  similar  complaints  that  may  arise  in  the  superior  as 
well  as  the  secondary  educational  administration.    The 

^  See  for  details,  Simonet,  op.  cit.^  citing  L.,  June  14,  1854  ;  L.,  Feb.  27, 1880, 
art.  9  ;  and  i. 


FRENCH  ADMINIST^TIVE  JURISDICTION.     237 

superior  council  has,  as  a  council  of  advice,  to  give  its 
opinion  when  asked  on  all  matters  connected  with  the 
subject  of  education,  and  as  an  administrative  court 
to  hear  appeals  from  the  departmental  council  as  to 
matters  relating  to  primary  education,  and  from  the 
academic  council  as  to  matters  relating  to  secondary 
and  superior  education.  As  a  court  it  has  appellate 
Jurisdiction  alone,  and  its  decisions  as  to  questions 
of  fact  are  final,  but  in  case  such  decisions  exceed  its 
powers  or  violate  a  law  appeal  for  excess  of  powers 
may  be  taken  to  the  Council  of  State. 

b.  The  councils  of  revision. — The  councils  of  revision 
are  governed  by  the  law  of  July  27,  1872,  and  were 
formed  for  the  purpose  of  deciding  complaints  which 
may  arise  as  a  result  of  the  conscript  laws.  They  are 
composed  of  both  military  and  civil  members,  though 
the  actual  control  is  in  the  hands  of  the  civil  members. 
The  prefect  is  the  president.  The  civil  elements  are 
representatives  of  the  general  council,  the  council  of 
the  prefecture,  the  departmental  commission,  and  of 
the  councils  of  the  arondissements  of  the  departments 
over  which  the  council  of  revision  has  Jurisdiction. 
It  moves  about  from  canton  to  canton  in  the  depart- 
ment, and  revises  the  drawing  of  the  lots  which  decide 
who  shall  serve  in  the  army  where  there  are  a  greater 
number  of  candidates  for  the  army  than  are  required, 
and  decides  on  all  cases  of  exemption  from  service  in 
time  of  peace.  Its  decisions  are  generally  final  as  to 
questions  of  fact,  but  may  be  appealed  from  to  the 
Council  of  State  on  the  ground  of  excess  of  powers 
and  violation  of  the  law. 

In  addition  to  these  bodies  there  are  also  certain 
other  commissions  which  are  sometimes  regarded  as 


238     CONTROL  OVER  THE  ADMINISTRATION. 

administrative  courts,  such  as  the  commissions  of 
moneys  and  the  commissions  for  levying  assessments 
for  local  improvements. 

3.  The  supreme  administrative  court  IJie  Council  of 
State. — The  organization  of  this  body  has  already  been 
described  and  it  has  already  been  pointed  out  that  it 
is  the  most  important  administrative  council  in  the 
French  system  and,  as  such,  advises  the  President  of 
the  republic  and  the  various  ministers/  It  has  also 
been  pointed  out  that  it  is  divided  up  into  sections, 
four  of  which  are  administrative  sections  and  are  to 
advise  the  government  in  purely  administrative  matters, 
but  that  the  fifth  section  is  the  judicial  section  whose 
duty  is  to  do  a  large  part  of  the  work  devolved  upon 
the  council  in  its  capacity  of  administrative  court. 
This  judicial  section  is  called  the  section  du  contentieux 
and  is  composed  of  ^vq  councillors  of  state  and  a  cer- 
tain number  of  commissioners  (rnaUres  des  requetes) 
and  auditors.  It  decides  alone  all  less  important  mat- 
ters and  for  all  the  more  important  matters  makes  the 
preliminary  examination,  though  in  these  cases  the 
actual  decision  is  made  by  the  whole  council  which  is 
then  said  to  be  acting  au  contentieux.  The  law  of 
May  24,  1872,  has  given  the  council  acting  as  an 
administrative  court  an  absolute  power  of  decision. 

Its  general  administrative  jurisdiction,  i.  e,  the  con- 
tentieux administ/ratif,  is  both  original  and  appellate. 
Its  original  jurisdiction  may  be  said  to  be  general,  as 
an  appeal  may  be  taken  to  it  from  any  decision  of  the 
President  of  the  republic  or  of  the  ministers  which 
violates  a  right ;  and  it  has  the  right  to  interpret  all 
acts  of  the  chief  executive  and  the  ministers  which  are 

'  Supra,  I.,  p.  108. 


FRENCH  ADMINISTRA  TIVE  JURISDICTION.     239 

administrative  in  character.  In  certain  cases  thongli 
not  often,  it  has  original  jurisdiction  of  complaints 
against  the  action  of  the  prefects.^ 

Further  its  appellate  jurisdiction  consists  in  the 
hearing  of  appeals  from  the  decisions  of  the  councils 
of  the  prefectures  and  of  most  of  the  special  courts ; 
and  on  such  appeals  it  may  review  questions  of  fact 
and  of  expediency  as  well  as  of  law.^ 

Finally  the  Council  of  State  acts  as  a  court  of  cassa- 
tion,  as  a  result  of  its  jurisdiction  of  appeals  for  excess 
of  powers  and  violation  of  the  law.^  Here  the  decision 
of  the  Council  of  State  simply  affirms  or  reverses  the 
decision  of  the  body  whose  act  is  complained  of.  It 
may  not,  as  it  may  in  the  exercise  of  its  ordinary  apel- 
late jurisdiction,  substitute  its  decision  for  that  of  the 
authority  from  whose  action  appeal  has  been  taken.* 

*  Aucoc,  op.  cii.y  I.,  588.  *  Supra,  II.,  p.  229. 

*  Ibid.f  591.  *  Aucoc,  cp.  cit.,  I.,  591. 


CHAPTER  VII. 

THE  ADMINISTRATIVE   JURISDICTION   IN   GERMANY. 

/. — History, 

1.  Frrnn  1806  to  the  formation  of  the  em'pire. — 
When  the  old  Grerman  kingdom  and  Holy  Roman 
Empire  was  broken  up  in  1806  the  administrative 
jurisdiction  of  the  royal-imperial  courts  was  completely 
destroyed  and  individuals  were  left  at  the  mercy  of  the 
separate  states  which  then  came  into  being.  The 
imperial  administrative  jurisdiction  over  the  acts  of  the 
of&cers  of  the  most  important  members  of  the  empire 
was  not  very  great  as  a  result  of  the  privilegium  de 
non  appellcmdo  which  was  possessed  by  most  of  them  and 
in  accordance  with  which  appeals  to  the  imperial  courts 
against  the.  acts  of  officers  in  these  sections  were  not 
allowed.*  The  separate  German  states  were  very  gen- 
erally guided  in  their  regulation  of  the  relations  of  the 
courts  and  the  administration  by  the  new  principle  of 
the  separation  of  pow;ers  which  had  been  so  fully  de- 
veloped by  the  French  revolution.  This  had  for  its 
corollaiy,  it  will  be  remembered,  the  complete  inde- 
pendence of  the  administration  over  against  the  courts, 
which  were  to  be  confined  to  the '  decision  of  private 

*  Meyer,  Deutsches  Verwaltungsrechi^  I.,   29  ;    cf.  Gneist,  Der  Rechtsstaaty 
cap.  v.;  Das  Englische  Verwaltungsrechi,  I.,  423,  exc, 

240 


GERMAN  ADMINISTRATIVE  JURISDICTION.     241 

and  criminal  law  cases.  That  is  all  complaints  against 
the  action  of  the  administration,  so  far  as  they  did  not 
come  within  the  domain  of  the  private  or  the  criminal 
law,  were  in  Germany  as  in  France  to  be  decided  by  the 
administration  itself;  and  perfect  freedom  of  appeal 
from  the  decisions  of  the  subordinate  authorities  to  the 
higher  authorities  was  provided.  This  condition  of 
things  did  not,  however,  lead  at  first  to  great  arbitrari- 
ness of  action  on  the  part  of  the  administration.  For 
the  administrative  authorities  in  their  higher  instances 
were  so  organized  as  to  ensure  to  the  individual  almost 
the  same  guaranties  of  impartial  action  as  were  to  be 
found  in  the  courts.^  They  were  organized  for  the 
most  part  as  boards  whose  members  had  a  tenure 
similar  to  that  of  the  judges,  i,  e,  practically  during 
good  behavior.  When,  however,  the  absolute  mon- 
archy was  changed  into  the  constitutional  monarchy  as 
a  result  of  the  revolution  of  1848  all  this  was  changed. 
The  highest  administrative  authorities,  the  minister's, 
became  partisans  rather  than  the  representatives  of  an 
impartial  crown.  The  administrative  organization 
became  more  single-headed  in  form  and  was  more 
completely  subordinated  to  the  ministers.^  The  ad- 
ministration thus  became  an  instrument  which  might  be 
made  use  of  by  the  political  party  which  happened  to 
be  in  power  in  the  legislature  to  further  its  own  ends ; 
and  as  all  of  the  great  political  parties  were  essentially 
social  parties  the  danger  became  very  great  of  the 
partisan  application  of  the  administrative  law  in  the 
interest  of  some  particular  social  class.  In  Prussia 
this  was  actually  the  case  during  the  reactionary  period 

^  Meyer,  Deutsches  Verwaliungsrecht,  I.,  32. 

«  Supra,  I.,  p.  299  ;  II.,  p.  188. 
VOL  n— 16 


242     CONTROL  OVER  THE  ADMINISTRATION. 

from  1850-60/  The  conservative  party  whicli  was 
the  landholding  interest,  i.  e.  the  nobility,  got  control 
of  the  administration  and  prostituted  it  in  the  interest 
of  their  own  social  class  and  to  the  detriment  of  other 
social  classes.  German  publicists  saw  that  some  change 
must  be  made, — that  some  judicial  control  over  the 
administration  must  be  provided.  The  great  question 
was  how  should  this  judicial  control  be  formed? 
Should  it  be  given  to  the  ordinary  courts  or  should 
there  be  formed  special  courts  after  the  model  of  the 
French  courts  which  by  this  time  had  shown  them- 
selves to  be  efficient  protectors  of  individual  rights? 
Prussia,  where  the  condition  of  things  was  the  worst, 
was  the  first  to  answer  this  question  and  answered  it 
by  granting  in  1861  to  the  ordinary  courts  a  control 
over  certain  administrative  acts  connected  with  the  tax 
administration.^  It  is,  however,  to  be  noticed  that  a 
Prussian  ordinance  of  as  early  a  date  as  1808  and 
another  of  May  11,  1842,  had  taken  steps  in  this  direc- 
tion by  permitting  appeal  to  the  courts  in  the  case  of 
police  orders  on  the  ground  that  they  were  absolutely 
contrary  to  law.  Further,  in  case  the  law  recognized 
an  obligation  on  the  part  of  the  government  to  indem- 
nify an  individual  for  an  invasion  of  his  property 
rights  the  courts  were  permitted  to  decide  as  to  the 
necessity  and  the  amount  of  the  indemnity.  At  about 
the  same  time  Baden  declared  in  favor  of  special  ad- 
ministrative courts.^  The  progress  of  the  reform  in 
Prussia,  however,  was  interrupted  by  the  serious  internal 
and  external  questions  which  presented  themselves  for 

*  Supra,  I.,  p.  299. 

'  L.  May  24,  1861  ;  cf.  Meyer,  Deutsches  Verwaltungsrecht,  I.,  31,  et  seq. 

*See  L.  Oct.  5,  1863,  cited  in  Meyer,  Deutsches  Verwaltungsrecht,  I.,  33, 


GERMAN  ADMINISTRATIVE  JURISDICTION.     243 

solution  and  it  was  not  till  after  tlie  wars  with  Austria 
and  France  had  been  fought  that  the  question  was 
again  taken  up.  It  is  therefore  with  the  formation  of 
the  empire  that  the  problem  was  definitely  solved. 

2.  Sinoe  the  formation  of  the  empire, — As  a  result  of 
imperial  legislation  the  following  is  the  condition  of 
things  :  The  imperial  law  organizing  the  courts  main- 
tains in  theory  the  independence  of  the  administra- 
tion in  its  former  extent/  but  it  and  other  laws  have 
given  to  the  courts  in  a  few  special  instances  a  control 
over  the  administration,^  while  as  a  result  of  the  general 
principle  of  German  law  which  is  in  many  cases 
formally  expressed  in  the  imperial  statutes,^  the  courts 
control  all  private  legal  acts  of  the  administration,  i.  e, 
when  acting  as  fiscus  it  makes  contracts  or  commits 
torts.*  Other  imperial  laws  also  have  provided  in 
special  instances  for  special  administrative  courts.  The 
imperial  legislation,  however,  leaves  everything  else  to 
be  regulated  by  the  legislation  of  the  separate  mem- 
bers of  the  empire,  simply  providing  that  questions  of 
competence  between  the  administration  and  the  courts 
shall  be  decided  by  a  body  in  which  the  courts  shall 
have  a  fair  representation.^ 

//. — The  general  characteristics  of  the  Gerfnan  system, 

1.  General  canons  of  distinction, — In  the  first  place 
the  action  of  the  administration  when  acting  as  a  public 
power  is  in  theory  both  in  the  empire  and  in  the  sepa- 
rate members  of  the  empire  free  from  all  judicial  con- 

*  L.  Jan.  27,  1877,  art.  13. 

•Loening,  op.  cit.,  787  ;  Laferriere,  La  Juridiction  Administrative^  I.,  37. 

*  As  <?.  ^.  in  the  statute  putting  in  force  the  code  of  civil  procedure,  sees.  4 
and  5.  '*  Supra,  II.,  p.  162.  '  L.  Jan.  27,  1877,  sec.  17. 


244     CONTROL  OVER  THE  ADMINISTRATION, 

trol  both  from  that  of  the  ordinary  courts  and  from  that 
of  the  administrative  courts  except  where  the  law  has 
specifically  laid  down  that  it  should  be  subjected  to 
control.  In  the  second  place  the  particular  cases  where 
the  administration  is  subjected  to  judicial  control  are 
of  two  kinds ;  either  it  is  subjected  to  the  control  of 
the  ordinary  courts  or  it  is  subjected  to  the  control  of 
special  administrative  courts. 

2.  The  administrative  jurisdiction  of  the  ordina/ry 
courts. — Individual  liberty  is  protected  as  in  France 
against  attack  on  the  part  of  the  administration  by  the 
code  of  criminal  procedure  which  makes  it  certain  that 
a  person  who  has  been  arrested  may  be  able  to  have 
his  case  brought  up  at  once  before  the  ordinary  courts 
for  decision  as  to  the  legality  of  his  detention.^ 

Again  in  most  cases  where  power  has  been  given  to 
the  administration  to  decide  in  first  instance  private 
law  cases,  as  e,  g,  where  police  authorities  are  given,  as 
is  usually  the  case,  the  power  to  decide  conflicts  arising 
between  innkeepers  and  their  guests  as  to  charges, 
appeals  may  be  taken  to  the  ordinary  courts."^ 

Further  in  most  cases  where  the  law  recognizes  that 
the  government  is  bound  to  pay  an  individual  an  in- 
demnity for  an  invasion  of  his  property  rights,  as  e,  g. 
in  the  case  of  the  exercise  of  the  right  of  eminent 
domain,  the  ordinary  courts  are  to  decide  the  amount 
of  the  indemnity  but  may  not  usually  consider  the 
question  whether  the  administration  was  acting  legally ; 
the  latter  question  is  to  be  decided  by  the  administra- 
tion or  the  administrative  courts  as  the  case  may  be.^ 


3 


'  Stengel,  Worterbuch  des  Deutsches  Verwaltungsrecht,  sub  verba  Verhaftung^ 
citing  arts.  114,  132,  341  of  the  code  of  criminal  procedure. 

"  Sarwey,  Das  Oeffentliche  Recht,  etc. ,  62  5.  3  Ibid. ,  633  et  seq. 


GERMAN  ADMINISTRATIVE  JURISDICTION.     245 

Still  further,  where  the  law  permits  administrative 
execution  *  in  the  enforcement  of  money  payments  due 
the  government,  appeal  may  be  taken  to  the  courts  if 
such  administrative  execution  is  directed  towards  real 
rights — dingliche  rechte} 

Finally  in  Prussia  it  is  provided  that  the  individual 
may  appeal  to  the  ordinary  courts  against  the  acts  of 
the  administration  in  tax  and  police  matters,  i.  e,  he 
may  allege  that  the  tax  is  already  paid,  or  that  he  is 
relieved  in  some  way  from  the  payment,  or  that,  as  the 
result  of  some  special  statute  or  privilege,  he  is  not 
liable  to  do  the  thing  ordered  by  the  police  authority.^ 

///. —  The  administrative  courts  in  Germany, 

These  are  to  be  found  both  in  the  empire  and  in  its 
separate  members.  In  the  empire  these  administrative 
courts,  though  comparatively  numerous,  have  a  very 
limited  jurisdiction,  being  confined,  each  of  them,  to 
the  decision  of  a  certain  class  of  cases.  In  most 
instances  they  act  at  the  same  time  as  administrative 
authorities,  this  being  the  method  adopted  of  making 
it  certain  that  the  members  of  the  courts  have  the 
necessary  special  knowledge,  and  in  one  or  two  cases 
appeal  goes  from  their  decisions  to  the  imperial  court 
at  Leipsic. 

1.  Imperial  courts. — These  are  : 

a.  The  imperial  poor-law  hoard  {Bundesamt  fUr 
Heimathmoesen). — This  tribunal  decides  all  conflicts 
arising  between  the  poor-law  uniousof  different  mem- 
bers  of  the   empire   relative  to  the  duty  of  offering 

^  Supra,  II.,  p.  127. 

^  Ibid.,  citing  law  introducing  code  of  civil  procedure,  sec.  4. 
'  Stengel,  Worterbuch,  sub  verba  Rechtsweg  for  this  and  for  the  provisions  of 
a  similar  character,  contained  in  the  laws  of  the  other  members  of  the  empire. 


246     CONTROL  OVER  THE  ADMINISTRATION. 

public  charity  to  poor  persons.*  Its  competence  does 
not  extend  over  Bavaria  and  Alsace-Lorraine,  whose 
inhabitants  are,  from  the  standpoint  of  the  poor-law, 
to  be  treated  as  foreigners.  The  separate  members  of 
the  empire  may  by  local  statute  provide  that  the  final 
decision  of  conflicts  between  their  own  poor-law  unions 
may  be  made  by  this  authority.  This  has  been  done 
in  Prussia,  Hesse,  and  several  others.^ 

b.  Imperial  fortress  belt  commission. — This  body  was 
organized  by  the  law  of  December  21,  1871,  and 
decides  on  appeal  conflicts  between  the  individual  and 
the  administration  relative  to  the  imposition  of  restric- 
tions on  real  property  within  a  certain  distance  of  fort- 
resses. It  is  to  be  noticed,  however,  that  in  accordance 
with  the  general  principle  already  noted,  all  conflicts 
relative  to  the  amount  of  the  indemnity  to  be  paid  to 
the  individual  are  to  be  settled  by  the  ordinary  courts.^ 

c.  Imperial  railway  court  (  Verstdrhte  Misenhahnamt^, 
— This  was  organized  by  the  law  of  June  27, 1873,  and 
decides  conflicts  between  the  railway  commission  and 
the  various  railways  when  the  railways  claim  that  the 
commission  has  acted  contrary  to  the  law.  In  case  of 
such  an  appeal  certain  judicial  officers  are  added  to 
the  commission,  which  then  takes  on  the  name  of  the 
railway  court,  and  is  to  act  quite  independently  of  the 
administration,  which  presents  the  case  to  it. 

d.  Imperial  patent  office. — This  was  organized  by 
the  law  of  May  25,  1877,  and  not  only  issues  patents, 
but  annuls  and  revokes  them.  In  these  last  cases 
appeal  goes  to  the  imperial  court  at  Leipsic/ 

*  L.  June  6,  1870,  sec.  42. 

'See  De  Grais,  Verfassung  und  Verwaltung.,  etc.,  311,  note  20. 

^  See  Meyer,  Deutsches  Verwaltungsrechi,  II.,  163.  ^  Cf.  ibid.,  I.,  425. 


GERMAN  ADMINISTRATIVE  JURISDICTION,     247 

e.  The  disGvpUnary  court  cmd  chamhers. — These 
bodies  decide  as  to  the  removal  of  officers  in  the 
imperial  administration,  and  the  imposition  upon  them 
of  disciplinary  penalties/ 

f.  The  imperial  superior  marine  office. — This  was 
organized  by  the  law  of  July  27,  1877,  and  decides 
complaints  against  the  decisions  of  the  marine  officers, 
either  taking  away  licences  from  pilots  and  ship 
officers  or  refusing  to  prosecute  them  on  the  complaint 
of  the  marine  commissioners. 

The  position  of  the  members  of  the  poor-law  board 
seems  to  be  more  assured  than  that  of  the  members  of 
the  other  bodies.  It  is  similar  to  that  of  the  judges 
of  the  ordinary  courts.  The  members  of  the  other 
courts  are  for  the  most  part  merely  administrative 
officers.  But  it  must  be  remembered  that  all  adminis- 
trative officers  have  practically  a  tenure  during  good 
behavior  and  can  be  removed  in  the  absence  of  criminal 
acts  only  as  a  result  of  a  disciplinary  procedure  before 
the  disciplinary  courts.  Therefore  wherever  the  law 
says  that  these  officers  are  to  act  independently  of  the 
administration,  which  is  usually  the  case,  they  are  not 
subject  to  the  directions  of  the  administration.  For 
refusal  to  obey  the  commands  of  the  administration 
would  not  probably  be  regarded  as  a  case  for  the 
exercise  of  the  disciplinary  power.  These  courts  are 
all  of  them  thus  practically  independent  of  the  admin- 
istration. Their  organization,  which  is  often  peculiar, 
and  their  jurisdiction  are  fixed  in  the  laws  organizing 
them.^ 

'  Supra,  II.,  p.  87. 

2  The  details  may  be  found  in  the  laws  which  have  been  cited,  or  in  Meyer, 
DeuUches  Verwaltungsrecht,  under  the  appropriate  heading. 


248     CONTROL  OVER  THE  ADMINISTRATION. 

2.  The  Prussian  administrative  courts. — In  the 
separate  members  of  the  German  Empire  the  adminis- 
trative courts  are  differently  formed  and  possess  a 
varied  jurisdiction.  The  most  completely  organized 
courts  and  the  courts  which  possess  the  widest  juris- 
diction are  those  of  Prussia  to  which  our  future  con- 
sideration will  be  confined. 

a.  The  jurisdiction  of  the  Prussian  administ/rative 
courts. — Though  the  jurisdiction  of  the  Prussian  ad- 
ministrative courts  has  been  modelled  in  large  part  on 
the  jurisdiction  of  the  French  administrative  courts, 
there  are  several  points  of  essential  difference.  In  the 
first  place  their  jurisdiction  does  not  include  any  of 
the  decisions  of  the  ministers  which  are  not  subjected 
as  a  rule  to  any  administrative  jurisdiction  at  all ;  nor 
does  it  as  a  general  thing  include  the  decisions  of  any 
of  the  officers  of  the  central  administration  except  in 
so  far  as  they  relate  to  the  administration  of  internal 
affairs  and  to  the  purely  local  taxes.  The  control  of 
the  central  taxes  is  in  the  hands  of  the  central  admin- 
istration alone ;  for  no  special  exception  has  been 
made  in  this  case  as  has  been  made  in  the  case  of  local 
taxes.  In  the  second  place  it  may  be  laid  down  as  a 
general  rule  that  no  appeal  to  the  administrative  courts 
is  open  to  the  individual  against  the  general  acts  of 
the  administration,  i.  e.  ordinances.^  The  appeal  may 
be  taken  only  from  a  special  administrative  act  not  of 
general  application.  Nevertheless  on  the  appeal  from 
a  special  act  of  the  administration,  performed  in  order 
to  enforce  an  ordinance,  the  administrative  courts  may 
consider  collaterally  the  question  of  the  validity  of  the 

^  Stengel,   Organisation,  etc.,  458.     There  is  no  remedy  in  the  Prussian  sys- 
tem similar  to  the  French  appeal  to  the  Council  of  State  for  excess  of  powers. 


GERMAN  ADMINISTRATIVE  JURISDICTION,     249 

ordinance  and  may  refuse  to  enforce  the  special  act  on 
the  ground  that  the  ordinance  which  it  is  issued  to 
enforce  is  illegal.^ 

There  are  two  general  rules  governing  the  right  of 
appeal  to  the  administrative  courts  against  the  special 
acts  of  the  administration. 

In  the  first  place  only  those  acts  may  be  appealed 
from  whose  tendency  is  to  violate  private  rights.  As 
a  result,  however,  of  the  enumerated  jurisdiction  of  the 
administrative  courts  a  provision  of  law  must  give  the 
right  to  appeal  even  when  a  private  right  is  violated. 
The  special  cases  enumerated  in  the  statutes  are  so 
numerous  that  almost  every  individual  right,  subject 
to  the  limitations  mentioned  above,  is  protected  by  an 
appeal  to  the  administrative  courts.  The  only  excep- 
tion to  the  rule  that  the  existence  of  a  special  provision 
of  law  is  necessary  in  order  that  recourse  to  the  ad- 
ministrative courts  may  be  had  is  in  the  case  of  the  acts 
of  the  administration  relating  to  what  are  called  police 
matters,  i.  e,  resulting  from  the  exercise  of  the  police 
power.  Here  the  law  distinctly  says  that  the  indi- 
vidual may  appeal  from  the  police  orders  of  the 
administration  on  the  ground  that  his  rights  are  vio- 
lated thereby,  because  the  police  authorities  have  not 
applied  the  law  or  have  made  a  wrongful  application 
of  it  on  the  ground  that  the  conditions  are  not  present, 
which  by  the  law  are  necessary  in  order  that  the  police 
authorities  may  act.^  As  these  police  orders  constitute 
by  far  the  larger  number  of  the  acts  of  the  adminis- 
tration in  the  administration  of  internal  affairs,  and  as 
this  rule  permits  the  administrative  courts  to  review 
the  decisions  of  the  administration  not  only  on  ques- 

^  Ibid.  2/3i^.,49i. 


250     CONTROL  OVER  THE  ADMINISTRATION. 

tions  of  law  but  also  on  questions  of  fact,  i.  e.  they  are 
to  determine  whether  the  conditions  made  necessary  by 
law  for  the  action  of  the  police  authorities  are  present, 
it  will  be  noticed  that  the  control  of  the  administrative 
courts  over  the  administration  of  internal  affairs  is 
quite  an  extended  one.  Further,  not  only  may  indi- 
vidual persons  appeal  to  the  administrative  courts,  but 
also  public  corporations  may  appeal  to  these  courts 
against  the  decisions  of  the  supervisory  authorities 
made  in  the  exercise  of  the  central  administrative  con- 
trol over  public  corporations  and  their  officers.  Thus 
if  the  supervisory  authority  should  insert  an  appro- 
priation in  the  budget  of  a  city  for  the  payment  of  an 
expense  which  it  regarded  as  obligatory,  but  which  the 
municipal  authorities  did  not  regard  as  obligatory,  the 
municipality  might  appeal  from  the  decision  of  the 
supervisory  authority  to  the  administrative  courts. 

While  the  general  rule  is  that  the  appeal  to  the 
administrative  courts  is  open  only  in  case  of  the  viola- 
tion of  a  private  right,  in  a  few  cases  it  is  permitted 
simply  in  the  interest  of  the  maintenance  of  the  law. 
This  is  so  e,  g,  in  the  case  of  elections.  Here  not  only 
a  defeated  candidate  but  also  any  elector  may  appeal 
to  the  administrative  courts  against  the  decision  of  the 
election  officers  on  the  ground  that  it  has  violated 
the  law.^ 

Finally  in  all  cases  where  an  appeal  is  made  to  the 
administrative  courts  the  appeal  is  made  in  the  same 
form,  i.  e.  in  the  form  of  a  complaint  that  injustice  has 
been  done.  Like  the  appeal  to  the  English  quarter 
sessions  the  remedy  is  general* though  the  jurisdiction 
of  the  courts  is  enumerated.     As  a  general  thing  the 

*  Stengel,  Organisation,  etc.,  493. 


GERMAN  ADMINISTRATIVE  JURISDICTION,     251 

appeal  to  the  administrative  court  has  a  suspensive 
effect,  and  is  therefore  similar  to  the  injunction  in 
English  law.  But  if  the  execution  of  the  act  com- 
plained of  may  not  in  the  judgment  of  the  administra- 
tion be  suspended  without  harm  to  the  public  weal,  it 
may  be  executed  notwithstanding  the  pendency  of  the 
suit.  In  no  case,  however,  may  the  administration 
decree  the  arrest  of  a  person  until  the  case  has  been 
decided  in  its  favor  by  an  administrative  court  or  until 
after  the  time  provided  for  appeal  to  the  administrative 
court  has  elapsed.^ 

b.  Tlie  oi^ganization  of  the  Prussian  administrative 
courts. — The  Prussian  administrative  courts  may,  like 
the  French,  be  divided  into  courts  of  first  instance,  and 
appellate  courts.  For  a  large  class  of  cases,  however, 
there  are  three  instances.  For  the  appellate  courts  for 
some  cases,  are  courts  of  first  instance  for  others. 
What  shall  be  the  court  of  first  instance  in  a  given 
case  is  determined  largely  by  the  grade  in  the  adminis- 
trative hierarchy  of  the  authority  whose  act  is  com- 
plained of. 

The  Prussians,  like  the  French,  and  indeed  like  the 
English  in  the  formation  of  the  appellate  jurisdiction 
of  the  courts  of  quarter  sessions,  have  recognized  the 
importance  of  having  their  administrative  judges 
learned  in  the  administrative  law  and  have  adopted 
practically  the  same  method  to  attain  the  desired  end. 
That  is  the  judges  in  most  cases  are  in  other  capacities 
engaged  in  the  work  of  active  administration.  The 
only  exception  to  this  rule  is  to  be  found  in  the  case 

'  Ibid.^  520  ;  citing  L.  July  30,  1883,  sees.  53,  133.  This  of  course  refers 
only  to  the  decree  of  executive  arrest  as  a  means  of  executing  the  law. 
Supra,  II.,  p.  121. 


252     CONTROL  OVER  THE  ADMINISTRATION. 

of  the  highest  administrative  court.  In  all  .cases,  dif- 
ferent from  the  French  administrative  judges  and  more 
like  the  English  justices  of  the  peace,  the  Prussian/ 
administrative  judges  are  independent  in  tenure  over 
against  the  active  administration.  Further  in  the 
lower  instances  the  Prussian  administrative  judges,  like 
the  English  justices  of  the  peace,  are  laymen  and  are 
unpaid.  The  judges  of  the  highest  court  are,  however, 
professional  lawyers  and  are  salaried  and  are  not 
engaged  in  active  administrative  work. 

In  detail  the  Prussian  administrative  courts  are  as 
follows : 

First,  the  circle  committee  in  the  rural  districts  and 
the  city  committee  in  the  city  circles.  These  bodies 
have  at  the  same  time  active  administrative  work  to 
perform.*  The  circle  committee  is  composed  of  the 
Landrath,  who,  it  will  be  remembered,  is  the  representa- 
tive of  the  central  administration  in  the  rural  circles 
and  the  executive  of  the  circle  as  a  local  municipal 
corporation  and  is  appointed  by  the  Crown,^  and  of 
six  members  elected  by  the  circle  diet  from  among 
the  inhabitants  of  the  circle.^  As  these  six  members 
represent  the  lay  non-professional  element  which  is 
unsalaried,  all  professional  officers  of  the  administration 
are  ineligible.  In  the  city  circles  (^.  e,  cities  of  over 
25,000  inhabitants)  the  city  committee  is  composed  of 
the  burgomaster  as  ^president,  and  of  four  municipal 
citizens  chosen  by  the  city  executive.*  The  president 
and  one  at  least  of  the  members  must  be  qualified  for 
the  judicial  or  higher  administrative  courts.  The 
jurisdiction  of  this,  the  lowest  of  the  administrative 

*  Supra,  I.,  pp.  315,  330.  ^  Kreisordnung,  sec.   181. 

«  Supra,  I.,  p.  315.  ■•L.  July  30,  1883,  sees.  37,  38. 


GERMAN  ADMINISTRATIVE  JURISDICTION.     253 

courts,  as  enumerated  in  the  statutes,  embraces  all 
cases  which  arise  between  communes  relative  to  their 
boundaries  and  to  the  apportionment  of  common 
charges  such  as  for  roads  and  schools,  local  taxes, 
common  enjoyment  of  public  institutions  and  com- 
munal property  ;  complaints  relative  to  the  enjoyment 
or  loss  of  membership  in  the  commune  or  smaller  city ; 
appeals  in  regard  to  communal  elections,  difficulties 
relative  to  the  civil  service,  i.  e,  the  imposition  of  dis- 
ciplinary penalties  on  the  non-professional  officers ; 
appeals  made  by  the  local  authorities  from  the  deci- 
sions of  the  supervisory  officers ;  difficulties  relative  to 
the  quartering  of  soldiers  and  military  requisitions  in 
time  of  peace ;  various  difficulties  relative  to  the 
police  of  highways,  waterways,  building,  commerce, 
industry,  and  hunting ;  complaints  against  the  action  in 
local  police  matters  of  all  local  police  authorities/ 

Such  in  general  is  the  jurisdiction  of  the  circle  and 
city  committee,  but  in  all  these  cases  if  the  adminis- 
trative authority  from  which  appeal  is  taken  is  an 
important  one  the  appeal  even  in  these  matters 
goes,  not  to  the  circle  or  city  committee,  but  to  the 
next  highest  court,  the  district  committee.  Thus  in 
the  matter  of  police  appeals,  if  the  action  complained 
of  has  been  taken  by  an  authority  of  a  city  of  over 
10,000  inhabitants  the  competent  administrative  court 
is  not  the  circle  or  city  committee  but  the  district 
committee. 

Second,  the  district  committee.  This,  like  the  circle 
committee,  is  an  authority  for  the  active  administration 
but  its  territorial  jurisdiction  is  much  larger,  extending 

^  Stengel,  Organisation,  etc.,  404  ;  cf.  Laferri^re,  La  yuridiction  AdministrO' 
Hve,  I.,  47. 


254     CONTROL  OVER  THE  ADMINISTRATION. 

over  the  entire  governmental  district,  which  corresponds 
somewhat  to  the  American  county.  It  is  however 
differently  organized  as  an  administrative  authority 
and  as  an  administrative  court.  In  the  first  capacity 
the  government  president,  the  representative  of  the 
central  administration  in  the  district,  is  president,  in 
the  second  capacity  it  is  presided  over  by  the  adminis- 
trative  court  director  who  is  appointed  by  the  Crown 
and  is  to  be  one  of  the  two  professional  members  pro- 
vided by  the  law.  These  two  professional  members 
are  to  be  appointed  by  the  Crown  for  life  and  must 
possess,  one,  the  qualifications  for  the  judicial  service, 
the  other,  the  qualifications  for  the  higher  administra- 
tive service.  In  addition  to  the  two  professional  mem- 
bers there  are  four  lay  members  who  are  appointed  by 
the  provincial  committee  from  among  the  inhabitants 
of  the  district.*  The  district  committee  has,  as  admin- 
istrative court,  original  and  appellate  jurisdiction.  It 
has  appellate  jurisdiction  of  the  decisions  of  the  circle 
and  city  committees  and  has  original  jurisdiction  over 
the  affairs  of  the  rural  circles  and  the  cities  of  over 
10,000  inhabitants  similar  to  that  which  the  circle 
committees  has  over  the  affairs  of  the  communes  and 
the  less  important  cities.^  The  whole  question  of 
jurisdiction  is  settled  by  the  competence  law  of  1883 
which  goes  into  the  most  minute  details  and  settles  not 
only  the  question  whether  appeal  may  be  taken  to  an 
administrative  court  (  Verwaltungslclage),  or  whether  it 
is  to  go  to  an  administrative  authority  (  Verwaltungs- 
beschwerde)^  but  also  determines  to  what  court  the 
appeal,  when  allowed,  is  to  go. 

*  L.  July  30,  1883,  sees.   27,  28,  supra,  I.,  p.  307. 
*  Stengel,  Organisation^  etc.^  424  ;  Laferriere,  op.  cit.,  I.,  49. 


GERMAN  ADMINISTRATIVE  JURISDICTION.     255 

Third,  the  superior  administrative  court.  This  court 
sits  at  Berlin,  and  is  the  highest  administrative  tri- 
bunal. It  is  composed  of  judges  who  must  be  at  least 
thirty  years  of  age  and  are  appointed  by  the  Crown  on 
the  presentation  of  the  state  ministry.  Half  the  judges 
must  possess  the  qualifications  necessary  for  the  judicial 
service,  the  other  half  must  be  qualified  for  the  higher 
administrative  service.*  It  is  divided,  in  order  to 
facilitate  the  transaction  of  business,  into  sections  or 
senates,^  but  in  order  to  keep  its  decisions  uniform,  it 
is  provided  that,  if  any  senate  desires  to  depart  from 
the  decision  of  any  other  senate  or  from  that  of  the 
general  assembly  of  the  court,  the  matter  in  question 
must  be  decided  by  the  general  assembly.^  This  court 
acts  as  a  court  of  appeal,  as  a  court  of  cassation,  and  in 
a  few  instances  as  a  court  of  original  jurisdiction.  It 
acts  as  a  court  of  appeal  from  the  decisions  of  the  dis- 
trict committee  when  it  often  acts  as  a  court  of  third 
instance.  Its  jurisdiction  as  a  court  of  cassation  can 
with  difficulty  be  distinguished  from  its  jurisdiction 
as  a  court  of  appeal,  the  only  difference  being  that 
when  it  acts  as  a  court  of  cassation  it  does  not  as  a 
usual  thing  decide  questions  of  fact  and  simply  quashes 
or  affirms  the  decision  of  the  court  appealed  from; 
whereas  when  it  acts  as  a  court  of  appeal  it  may  decide 
questions  of  fact  and  may  substitute  its  decision  for 
that  appealed  from.  As  a  court  of  original  jurisdiction 
it  decides  as  a  rule  simply  complaints  against  the  deci- 
sions of  the  highest  of  the  officers  in  the  localities,  viz,^ 
the  governors  of  the  provinces  and  the  "  governments  " 
and  the  "  government "  presidents  in  the  districts. 
When  it  acts  in  these  particular  capacities  is  decided 

*L.  July  3,  1875,  sees.  17,  18.  '  Ibid.,  sec.  20.  ^  gee.  29. 


256      CONTROL  OVER  THE  ADMINISTRATION. 

by  statute  which  descends  into  the  most  minute 
details.* 

Finally,  the  procedure  in  all  of  these  administrative 
courts  is  generally  oral,  and  the  sessions  are  public, 
but  this  may  be  changed  by  consent.  The  procedure 
is  also  somewhat  inquisitorial  in  character,  but  in  the 
main  controversial.^ 

It  will  be  noticed  that  the  general  system  of  admin- 
istrative courts  in  Prussia  is  based  on  the  French  plan, 
but  care  has  been  taken  to  avoid  the  appearance  of 
dependence  on  the  active  administration,  which  is 
regarded  by  some  writers  as  so  serious  a  defect  in  the 
French  system,  as  taking  away  in  fact  from  the  French 
administrative  tribunals  the  characteristics  of  judicial 
bodies.  The  Prussians  have  also  laid  great  stress  on 
the  non-professional  character  of  the  administrative 
judges,  in  imitation  of  the  English  courts  of  quarter 
sessions.  The  similarity  to  the  English  method  is  not 
accidental,  but  is  due  to  the  influence  of  that  great 
student  of  English  public  law.  Professor  Gneist  of  the 
University  of  Berlin,  to  whose  exertions  was  largely 
due  the  organization  of  the  system,  and  who  insisted 
on  the  dominance  of  the  non-professional  elements  in 
courts  whose  duty  it  was  to  control  so  professional  an 
administration  as  is  the  Prussian. 

*  C/".  Stengel,  Organisation^  etc.^  438  ;  Laferri^re,  op.  cit.^  I.,  50. 
'  Stengel,  Organisation^  eic.y  508  et  seq. 


CHAPTER  VIII. 

CONFLICTS    OF   JURISDICTION. 

Our  examination  of  tlie  administrative  jurisdiction 
in  the  various  countries  coming  under  consideration 
has  shown  that  England  and  the  United  States  have 
given  this  jurisdiction  in  first  or  in  last  instance  to  the 
ordinary  courts,  while  France  and  Germany  have  with 
some  exceptions  put  it  into  the  hands  of  special 
administrative  courts.  While  in  England  and  the 
United  States  the  possession  by  the  ordinary  courts  of 
the  administrative  jurisdiction  has  resulted  in  the  for- 
mation of  a  series  of  more  or  less  special  remedies  and 
a  very  technical  procedure/  the  existence  of  special 
courts  in  France  and  Germany  has  brought  about  the 
possibility  and  indeed  the  probability  of  conflicts  of 
jurisdiction  between  the  two  classes  of  courts,  or  be- 
tween the  ordinary  judicial  courts  and  the  administra- 
tion. Either  the  judicial  courts  attempt  to  encroach 
upon  the  competence  of  the  administration  or  the 
administrative  courts,  and  vice  versa,  when  we  have  a 
positive  conflict ;  or  they  both  refuse  to  take  jurisdic- 
tion on  the  ground  that  they  are  incompetent,  when 
we  have  a  negative  conflict.     It  is  necessary  to  provide 

^  An  example  of  the  technicality  of  the  procedure  may  be  found  in  the  Vir- 
ginia coupon  cases,  lately  decided  by  the  United  States  Supreme  Court.     See 
Poindexter  v.  Greenhow,   114  U.  S.,  270  ;    Hartman  v.  Greenhow,   102  U.  S., 
672  ;  Antoni  v.  Greenhow,  107  U.  S.,  769. 
VOL.  11—17  257 


258     CONTROL  OVER  THE  ADMINISTRATION. 

some  means  of  settling  these  conflicts.  This  means  has 
been  provided  in  both  countries  which  have  given  the 
administrative  jurisdiction  to  special  courts  or  to  the 
administration  itself.  In  France  the  Tribunal  of  Con- 
flicts has  been  formed  for  the  purpose  of  settling  these 
conflicts ;  in  Germany  either  a  similar  tribunal,  known 
as  a  competence  court,  has  been  established,  or  else  the 
power  to  settle  these  conflicts  has  been  given  to  the 
ordinary  judges.  Where  special  conflict  courts  have 
been  formed,  the  principle  upon  which  they  have 
been  formed  is  essentially  the  same,  that  is  that  they 
shall  be  composed  of  an  equal  number  of  judges  of  the 
ordinary  courts  and  of  administrative  judges.  The  law 
organizing  the  French  Tribunal  of  Conflicts  is  that  of 
May  24,"1872 ;  that  relative  to  this  matter  in  Germany 
is  the  law  organizing  the  courts  of  January  27,  1877, 
sec.  17,  developed  in  its  details  in  Prussia  by  Ordinance 
of  August  1,  1879.  ^  This  law  provides  in  the  first 
place  that  all  conflicts  of  jurisdiction  between  the 
courts  and  the  imperial  administrative  officers  shall 
be  settled vby  the  ordinary  courts  themselves^;  and 
in  the  second  place  permits  the  separate  members 
of  the  empire  to  give  the  imperial  courts  the  power  to 
decide  conflicts  arising  between  the  courts  and  admin- 
istrative officers,  but  permits  them  at  the  same  time  to 
form  special  conflict  courts)  But  if  they  avail  them- 
selves of  the  latter  privilege  the  special  courts  provided 
must  be  so  organized  that  one  half  of  their  members 
shall  be  at  the  same  time  members  of  the  higher  im- 
perial courts,  while  the  other  half  must  be  appointed 
for  life.  The  only  exception  to  this  general  principle 
in  force  in  both  France  and  Germany  as  to  the  equal  ^ 

*  Cf.  Stengel,  Organisation^  etc.^  557. 


CONFLICTS  OF  JURISDICTION.  259 

representation  in  the  conflict  courts  of  both  the  judicial 
and  administrative  elements  is  in  the  fact  that  the 
president  of  the  French  Tribunal  of  Conflicts  is  the 
minister  of  justice.  The  administration  would  thus 
seem  to  have  the  casting  vote  in  France.  But  it  must 
be  remembered  that  the  minister  of  justice  is  almost  as 
liable  to  declare  in  favor  of  the  jurisdiction  of  the 
ordinary  courts  as  in  favor  of  that  of  the  administra- 
tion, since  his  duties  connect  him  much  more  closely 
with  the  ordinary  courts  than  with  the  administrative 
courts  or  the  administration. 

The  method  of  raising  the  conflict  as  it  is  called  or 
as  we  would  say  in  America,  of  removing  the  cause,  is 
in  both  countries  practically  the  same.  But  it  is  ar- 
ranged primaHly  to  prevent  the  ordinary  courts  from 
encroaching  on  the  power  of  the  administration ;  and 
this  is  only  natural  since  the  whole^system  of  special 
administrative  courts  is  largely  based  upon  the  prin- 
ciple of  the  independence  of  the  administration  from 
the  control  of  the  ordinary  courts.  Thus  in  both 
France  and  Germany  the  power  to  remove  the  cause  is 
given  to  an  administrative  officer  only ;  and  he  is,  in 
case  a  court  is  in  his  opinion  attempting  to  encroach 
upon  the  competence  of  the  administration,^  to  notify  the 
court  of  the  opinion  of  the  administration.  If  the  court 
believes  the  claim  of  the  administration  is  well  founded 
it  will  stop  its  action  in  the  case,  if  it  does  not  it  opposes 
such  claim  and  the  question  goes  up  directly  to  the 
conflict  court  for  decision.  In  the  German  imperial 
administration  no  conflict  can  be  raised,  but  the  courts, 
^.  €.  the  ordinary  courts,  decide  the  matter  along  with 

^  In  France  the  prefect,  Boeuf,  Droit  Administratif,  546  ;  in  Germany  the 
provincial  or  district  officers,  Loening,  op.  cit. ,  792,  note  4. 


26o     CONTROL  OVER  THE  ADMINISTRATION. 

other  jurisdictional  questions  and  in  tlie  same  manner.^ 
In  those  eases  in  which  the  conflict  may  be  raised  the 
notification  by  the  administration  of  the  removal  of 
the  cause  suspends  all  proceedings  before  the  ordinary 
courts  until  the  decision  of  the  conflict  court  is  made.^ 
In  France  one  means  has  been  provided  of  preventing 
the  administrative  courts  from  encroaching  upon  the 
jurisdiction  of  the  ordinary  courts.  The  ministers  have 
the  right  to  remove  any  matter  before  the  Council  of 
State,  which  they  believe  belongs  before  the  ordinary 
courts,  into  the  Tribunal  of  Conflicts,  if  the  Council  of 
State  on  demand  refuses  to  declare  itself  incompetent.^ 
It  must  be  noted  that  the  exercise  of  such  a  check  on 
the  administrative  courts  is  in  the  hands  of  the  admin- 
istration and  not  in  those  of  the  judiciary.  The 
minister  of  justice  has,  however,  the  same  right  in  this 
respect  as  the  other  ministers. 

In  case  of  negative  conflicts  the  individual  concerned 
is  to  bring  the  matter  before  the  court  of  conflicts 
where  that  exists.*  In  France,  however,  an  interested 
minister  and  particularly  the  minister  of  justice  may 
bring  the  matter  before  the  Tribunal  of  Conflicts.^  In 
the  case  of  the  positive  conflict  it  is  provided  in  the 
interest  of  vested  rights,  that  the  cause  must  be  re- 
moved, in  Germany  before  judgment,^  in  France  before 
final  judgment,  in  the  ordinary  courts.^ 

The  existence  of  these  conflicts  is  one  of  the  greatest 
disadvantages  of  the  system  of  special  administrati-ve 
courts.    It  is  a  greater  disadvantage  probably  than  the 

'  Stengel,  Organisation^  etc.,  597. 

'  Boeuf ,  Droit  Administratif,  549  ;  Loening,  op.  cit. ,  793. 

"Boeuf,  op.  cit.,  556,  citing  L.  May  24,  1872,  art.  26. 

*  Boeuf,  op.  cit.,  554  ;  Loening,  op.  cit.,  793.      «  L.  Jan.  27,  1877,  art.  17. 

»  Boeuf,  op.  cit.,  554.  T  Boeuf,  op.  cit.,  546. 


CONFLICTS  OF  JURISDICTION.  261 

special  character  of  tlie  remedies  and  the  technical 
character  of  the  procedure  in  the  administrative  juris- 
diction of  the  ordinary  English  and  American  courts. 
For  in  the  case  of  a  positive  conflict  the  decision  of  a 
private  law  case  may  be  greatly  delayed,  v^hile  in  the 
case  of  a  negative  conflict  an  individual  may  be  obliged 
to  apply  to  both  classes  of  courts  and  to  the  conflict 
court  before  he  knows  which  court  is  the  proper  one. 
Cases  have  occurred  in  France  in  which  a  suitor  has 
gone  through  all  the  ordinary  courts  up  to  the  Court  of 
Cassation  only  to  be  told  that  the  ordinary  courts  are 
incompetent,  has  then  applied  to  the  administrative 
courts  and  finally  obtained  the  decision  of  the  highest 
one  of  these,  the  Council  of  State,  only  to  be  told  here 
also  that  the  administrative  courts  were  incompetent 
and  has  then  been  obliged  to  appeal  to  the  Tribunal 
of  Conflicts  and  after  all  the  trouble  and  expense  neces- 
sitated by  this  long  litigation  is  only  in  the  position  of. 
suitor  beginning  litigation  with  a  knowledge  of  the 
court  which  has  jurisdiction  of  his  case.  Of  course 
much  of  this  trouble  is  avoided  in  the  administrative 
system  of  the  German  Empire  where,  as  in  the  United 
States,  in  the  matter  of  the  jurisdiction  of  the  United 
States  and  commonwealth  courts,  the  supreme  judicial 
court  has  the  final  power  of  decision.  But  while  this 
method  is  of  course  of  great  advantage  to  the  suitor  it 
must  be  remembered  that  by  it  the  independence  of 
the  administration,  which  is  one  of  the  main  reasons 
for  providing  special  administrativ^e  courts,  is  not  so 
well  assured. 


Divimm  III. — The  Legislative  Cortt/i^ol. 


CHAPTER  I. 


HISTORY    OF    THE    LEGISLATIVE    CONTROL. 

The  history  of  the  legislative  or  parliamentary  con- 
trol must  be  studied  in  the  history  of  English  insti- 
tutions, since  England  developed  the  modern  legis- 
lative body.  In  the  historical  sketch  which  has  been 
given  of  the  English  administrative  organization  ^  it 
was  seen  that  there  was  gradually  developed  by  the 
side  of  the  absolute  Norman  king  a  body  composed  at 
first  of  the  meliores  terrce  and  finally  of  the  repre- 
sentatives of  the  entire  population  of  the  kingdom. 
One  of  the  most  important  functions  of  this  body,  the 
Parliament,  was  from  the  earliest  times  to  redress 
grievances.  Even  so  late  as  the  latter  part  of  the 
middle  ages  much  of  the  time  of  Parliament  was 
taken  up  in  the  discharge  of  this  function.  The 
grievances  which  the  Parliament  sought  to  redress  not 
only  were  notable  abuses  in  the  government  but  were 
found  in  the  most  minute  details  of  the  government. 
Indeed  at  first,  the  main  means  of  controlling  the  ad- 
ministration, not  only  in  the  interest  of  society  at  large 
but  also  in  that  of  individual  rights,  was  to  be  found 

'  Supra,  I.,  pp.  98,  122. 
262 


HISTORY  OF  LEGISLATIVE  CONTROL,         263 

in  this  parliamentaiy  control.  As  a  result  of  the 
government  of  the  Stuart  kings  two  facts,  however, 
became  apparent.  The  first  was  that  the  party  con- 
flicts which  are  so  apt  to  arise  in  Parliament  made  it 
an  improper  authority  for  the  exercise  of  such  an 
extended  control ;  the  second  was  that  the  parliamen- 
tary control  was  altogether  insufficient  for  the  protec- 
tion of  individual  rights  against  an  arbitrary  and 
corrupted  administration.  These  defects  in  the  system 
of  control  over  the  administration  were  remedied  by 
increasing  the  independence  of  the  local  organs  and  of 
the  courts,  and  the  consequent  increase  of  the  judicial 
control  over  the  administration.^  The  parliamentary 
or  legislative  control  was  in  this  way  reduced  to  the 
position  of  a  subsidiary  but  at  the  same  time  a  neces- 
sary control.^  The  general  redress  of  grievances  was 
therefore  made  by  the  courts  and  Parliament  redressed 
only  grievances  of  an  extraordinary  character.  Peti- 
tions for  redress  of  grievances  from  this  time  on  took 
on  the  character  more  of  propositions  de  lege  ferenda. 
At  the  same  time  Parliament  began  to  increase  its  con- 
trol over  the  administration  in  other  directions.  Thus 
it  began  to  specify  in  its  appropriation  acts  the  pur- 
poses for  which  money  might  be  spent  by  the  adminis- 
tration. The  spending  of  money  had  been  before 
1676  altogether  an  affair  of  the  royal  prerogative  with 
which  the  Parliament  had  not  interfered.  But  it  was 
led  to  assume  this  power  as  a  result  of  the  wasteful 
administration  of  the  kings,^  and  as  a  result  of  the 
fact  that  through  this  power  it  could  exercise  a  very 
efficient  control  over  the  general  policy  of  the  execu- 

*  Gneist,  Das  Englische  Verwaltungsrecht^  1884,  345. 
^  Gneist,  loc,  cit.  ^  Infra,  IL.,  p.  280. 


264     CONTROL  OVER  THE  ADMINISTRATION, 

tive.  Further  in  order  that  this  power  might  be  of 
any  value  it  was  necessary  for  the  Parliament  to  assure 
itself  in  some  way  that  the  administration  had  con- 
formed in  its  actions  to  the  provisions  of  the  appropria- 
tion acts.  It  therefore,  somewhat  later,  began  to 
examine  the  accounts  of  the  administration.  Again 
while  the  Parliament  still  retained  its  former  power  of 
impeaching  the  ministers  of  the  Crown  in  case  of  their 
continued  and  wilful  disobedience  of  the  resolutions  of 
Parliament  and  violation  of  the  law  of  the  land,  it 
added  very  much  to  its  powers  of  control  by  insisting 
that  the  ministers  of  the  Crown  should  be  such  persons 
as  could  obtain  and  retain  the  confidence  of  Parlia- 
ment. The  result  of  the  development  of  this  principle 
of  the  responsibility  of  the  ministers  led  to  a  further 
increase  of  the  control  of  the  Parliament,  which  is  not 
capable  of  exact  juristic  determination,  and  which  has 
practically  resulted  in  the  abandonment  of  the  power 
of  impeachment. 

The  formerly  all  embracing  parliamentary  control 
has  been  reduced  thus  practically  to  the  exercise  of 
three  powers  which  are  largely  subsidiary  to  the  othei* 
methods  of  control.  These  three  powers  are :  first, 
the  power  to  remedy  special  abuses  in  the  interest  of 
the  social  well-being  by  entertaining  propositions  de  lege 
ferenda  and  by  investigating  the  conduct  of  the  admin- 
istration ;  second,  the  power  of  controlling  the  general 
policy  of  the  administration  through  the  voting  of  the 
appropriations  and  the  examination  of  the  accounts  of 
the  administration  after  the  execution  of  the  budget  in 
order  to  see  whether  the  provisions  of  the  appropria- 
tion acts  have  been  observed  ;  and  third,  in  the  extra- 
ordinary power  of  impeachment,  to  be  made  use  of 


HISTORY  OF  LEGISLATIVE  CONTROL.         265 

only  when  all  else  fails  to  bring  the  administration 
within  the  bounds  of  the  law.  This  power  is  supple- 
mented by  the  principle  of  the  responsibility  of  the 
ministers  to  Parliament,  and  is  largely  replaced  in 
actual  practice  by  that  principle. 

Such  was  the  form  of  the  parliamentary  or  legisla- 
tive control  in  England  at  the  time  the  general  English 
system  of  constitutional  government  was  introduced 
into  the  governmental  system  of  constitutional  states, 
which  have  generally  adopted  it,  subject,  however,  to 
those  modifications  made  necessary  by  their  peculiar 
constitutional  system. 


CHAPTER  11. 

THE  POWER    OF    THE    LEGISLATURE    TO    REMEDY    SPECIAL 
ADMINISTRATIVE   ABUSES. 

The  exercise  of  this  power  may  result  from  petitions 
which  have  been  sent  to  the  legislature  by  individuals. 
For  almost  all  constitutions  guarantee  to  the  individual 
the  right  to  address  petitions  to  the  government,  and 
the  legislature  is  the  place  where  most  of  such  petitions 
go.  The  legislature  may  further  act  of  its  own  motion 
as  it  is  generally  on  the  watch  for  administrative 
abuses.  The  means  of  exercising  this  control  are  the 
passing  of  resolutions  condemnatory  of  the  administra- 
tion, the  putting  of  questions  or  interpellations  to  the 
administration,  and,  in  case  satisfactory  answer  is  not 
made  by  the  administration,  the  undertaking  on  the 
part  of  the  legislature,  through  committees  appointed 
by  it,  of  investigations  which  may  have  in  view  either 
the  unearthing  of  abuses  which  have  been  suspected  or 
obtaining  information  de  lege  ferenda.  The  extent  and 
influence  of  the  power  in  all  these  cases  of  its  exercise 
depends  very  largely  upon  the  character  of  the  rela- 
tions of  the  executive  and  the  legislature  as  fixed  by 
the  constitution.  If  in  the  special  political  system  the 
executive  power  is  independent  of  the  legislature  such 
control  loses  all  its  sanction,  except  in  so  far  as  it  may 
be  used  for  the  purpose  of  legislative  reform  (de  lege 

266 


POWER  TO  REMEDY  SPECIAL  ABUSES.       267 

ferenda).  But  on  this  account  alone  the  legislatures 
of  all  states,  even  of  those  where  the  executive  is  in- 
dependent of  the  legislature,  have  large  powers  of 
control  over  the  administration.  For  the  legislature 
through  the  passage  of  laws  may  circumscribe  the 
action  of  the  administration  so  far  as  discretionary 
powers  are  not  guaranteed  to  it  by  the  constitution, 
which  is  not  often  the  case.  In  those  countries,  how- 
ever, where  the  executive  is  dependent  upon  the  legis- 
lature, this  control  has  a  most  powerful  sanction.  For 
the  action  of  the  legislature  may  result  in  an  expres- 
sion of  its  lack  of  confidence  in  the  ministry,  which  is 
then  bound  to  step  out  and  give  place  to  a  ministry 
whose  conduct  will  satisfy  the  legislature.  From  this 
point  of  view  the  countries  under  consideration  may 
be  divided  into  two  classes.  In  the  first  will  be  found 
the  United  States  and  Germany^  not  only  in  their  cen- 
tral but  also  in  their  commonwealth  organizations ;  in 
the  second  class  are  to  be  placed  England  and  France. 

/. —  Where   the  administration  is  independent  of  the  legisla-^ 
ture  (United  States  and  Germany), 

In  the  United  States  and  Germany  this  control  is 
exercised  in  all  the  ways  which  have  been  mentioned. 
In  Germany  it  is,  however,  more  efficient  than  in  the 
United  States.  For,  though  the  administration  is 
independent  of  the  legislature  in  tenure,  it  is  customary 
for  the  highest  administrative  officers,  i,  e.  the  ministers, 
to  be  present  at  the  sessions  of  the  legislature.  Being 
present  they  are  naturally  forced  to  answer  questions 
put  to  them.  This  obligation  seems  to  be  simply  a 
moral  one,  their  refusal  to  answer  or  their  unsatisfactory 
answer  leading  to  no  legal  or  political  results.     Still 


268     CONTROL  OVER  THE  ADMINISTRATION. 

the  mere  fact  tliat  officers  of  the  administration  are 
present  and  practically  have  to  answer  questions  put 
to  them  has  an  important  moral  effect  in  making  them 
conduct  their  offices  properly.  This  method  of  exer- 
cising a  control  over  the  administration  by  the  legisla- 
ture is  called  on  the  continent  interpellation.  In  the 
United  States  such  a  method  of  control  is  not  even  so 
important  as  it  is  in  Germany  for  the  simple  reason 
that  the  officers  of  the  administration  are  never  present 
at  the  sessions  of  the  legislature ;  and  therefore  there 
is  no  opportunity  for  the  legislature  to  question  them 
personally,  although,  as  the  result  of  resolutions  passed 
by  either  house  of  the  legislature,  questions  may  be 
put  which  the  administration  may  answer  or  not  as  it 
sees  fit.  In  neither  Germany  nor  in  the  United  States 
do  resolutions  condemnatory  of  the  administration  have 
any  political  or  legal  effect,  though  in  both  countries 
the  legislature  has  the  right  to  pass  such  resolutions. 
Further  their  moral  effect  does  not  seem  to  be  very 
great. 

All  the  control  that  the  legislature  can  exercise  over 
the  administration  in  the  United  States  and  Germany 
other  than  the  moral  one  just  alluded  to  is  to  be  found 
in  the  powers  of  the  standing  committees  of  the  legis- 
lature and  of  the  special  investigating  committees  which 
from  time  to  time  may  be  appointed.  In  the  United 
States  there  is  usually  one  such  standing  committee 
for  each  administrative  department.  The  main  func- 
tion of  such  standing  committees  is  to  scrutinize  care- 
fully the  way  in  which  the  business  of  the  particular 
department  is  transacted.  The  special  committees  are 
formed  for  the  purpose  of  investigating  some  particular 
abuse  in  the  administration  whose  existence  is  alleged 


POWER  TO  REMSBS^^^BCIAL  ABUSES,      269 


by  individuals  or  has  come  to  the  notice  of  the  legis- 
lature. Keal  authority  such  committees  do  not  have, 
except  where  the  legislature  may  have  the  power  of 
removal.  Their  action  can  result  simply  in  new 
legislation.  Further  their  power  of  obtaining  in- 
formation either  from  the  officers  of  the  administra- 
tion or  from  private  individuals  is  often  not  a  great 
one.  This  is  true,  particularly  of  the  committees 
of  the  national  Congress.  For  quite  a  time  it  was 
supposed  that,  as  a  result  of  a  decision  of  the  United 
States  Supreme  Court,^  Congress  and  its  committees 
had  full  power  to  punish  witnesses  for  contempt  who 
refused  to  answer  questions  put  to  them  ;  but  the  same 
tribunal  in  a  more  recent  case  has  limited  very  greatly 
this  power. "  It  has  decided  ^  that  a  congressional  com- 
mittee had  no  power  to  punish  a  witness  for  contempt 
in  refusing  to  answer  questions  in  regard  to  matters 
over  which  Congress  had  no  jurisdiction ;  and,  while 
the  Supreme  Court  expressly  refused  to  decide  whether 
Congress  had  the  power  to  force  a  witness  to  testify 
in  cases  where  it  desired  information  for  its  use  in 
legislation,  it  seems  to  indicate  in  its  opinion  that  Con- 
gress has  no  such  power.  Nothing,  however,  prevents 
Congress  or  its  committees  from  gathering  testimony 
from  willing  witnesses.  When  we  come  to  the  com- 
monwealths it  is  not  so  easy  to  say  exactly  what  is  the 
power  of  the  legislature  in  this  respect.  It  is  easily 
conceivable  that  the  legislatures  of  the  commonwealths 
might  have  this  power  although  it  is  not  possessed  by 
the  national  Congress.  For  there  is  no  principle  of  our 
constitutional   law  which  is  clearer  than  that,  while 

^  Anderson  v.  Dunn,  6  Wheaton,  204. 
'  Kilboum  v.  Thompson,  103  U.  S.,  168. 


27©     CONTROL  OVER  THE  ADMINISTRATION. 

Congress  is  an  authority  of  enumerated  powers,  the 
legislatures  of  the  commonwealths  may  do  anything 
which  they  have  not  been  expressly  forbidden  to  do  by 
the  constitution/  And  seldom  do  we  find  in  the  com- 
monwealth constitutions  any  provisions  which  clearly 
take  away  any  such  power  from  the  commonwealth 
legislatures.  Indeed  in  the  constitutions  of  twenty- 
four  of  the  commonwealths  ^  such  power  of  punishing 
for  contempt  would  seem  to  be  granted.  The  consti- 
tutions of  several  of  the  commonwealths  provide  that 
the  legislature  shall  have  "  all  other  powers  necessary 
for  the  legislature  of  a  fyee  state."  ^  The  constitution  of 
Massachusetts  has  beett  so  interpreted  by  the  supreme 
court  of  the  commonwealth  as  to  give  a  committee,  ap- 
pointed for  the  simp^  purpose  of  investigation,  the 
power  to  punish  witnesses  for  contempt.^  Finally  in 
the  case  of  those  commonwealths  whose  constitutions 
contain  no  provision  as  to  this  point  we  have  several 
cases  which  throw  light  on  the  subject.  Most  of  these 
cases  are  in  the  courts  of  New  York,  which  has  exer- 
cised this  power  more  frequently  than  the  other  com- 
monwealths. Here  it  has  been  decided  that  the 
legislature  or  its  committees,  to  which  it  has  delegated 
the  power  of  investigation  either  by  statute  or  by  reso- 
lution, have  the  power  to  punish  for  contempt.^  The 
latest  case  on  the  point  ^  imposes  an  apparent  limitation 

'  See  Bank  of  Chenango  v.  Brown,  26  N.  Y.,  467,  469  ;  People  v.  Dayton, 
55  N.  Y.,  380. 

^Alabama,  Arkansas.  Colorado,  Connecticut,  Delaware,  Florida,  Illinois, 
Indiana,  Iowa,  Louisiana,  Maine,  Maryland,  Massachusetts,  Minnesota,  Mis- 
souri, Nebraska,  Nevada,  New  Hampshire,  Oregon,  Pennsylvania,  South  Caro- 
lina, Tennessee,  Texas,  and  West  Virginia.  See  F.  W.  Whitridge  on  "  Legis- 
lative Inquests,"  in  Pol.  Sci.  Qu.,  I.,  84,  89. 

'/did.,  89.  ^  Burnham  v.  Morrissey,  14  Gray,  226. 

'  People  v.  Learned,  5  Hun,  626  ;  see  also  Wilckens  v.  Willet,  I.  Keyes,  521, 
525.  •  People  ex  rel.  McDonald  v.  Keeler,  99  N.  Y.,  463. 


POWER  TO  REMEDY  SPECIAL  ABUSES.       271 

on  this  power  in  that  it  says  that  the  legislature  or  one 
of  its  committees  may  only  punish  for  contempt  wit- 
nesses who  refuse  to  answer  questions  put  with  the 
desire  of  obtaining  information  for  the  future  legisla- 
tive action  of  the  legislature;  but,  as  it  at  the  same 
time  admits  that  the  court  cannot  judge  of  the  inten- 
tion of  the  legislature,  all  that  the  legislature  has  to  do 
in  order  to  bring  itself  under  the  rule  stated  in  this 
case  is  to  declare  in  the  resolution  appointing  the  com- 
mittee that  it  desires  such  information.^  But  even  if 
the  legislature  does  not  possess  this  power,  still  as  a 
matter  of  fact  the  officers  of  the  administration  will 
usually  comply  with  the  summons  of  an  investigating 
committee  of  the  legislature,  and  will  answer  all  rea- 
sonable questions  put  to  them  since  "  desiring  legisla- 
tion and  always  desiring  money  [they  have]  strong 
motives  for  keeping  on  good  terms  with  those  who 
control  legislation  and  the  purse."  ^  It  would  seem 
that  the  German  law  recognizes  as  belonging  to  the 
legislature  a  similar  control  over  the  administration 
through  the  appointment  of  investigating  committees.^ 

//. —  Where  the  administration  is  dependent  upon  the  legislature 
(France  and  England), 

When  we  come  to  consider  those  states  whose  politi- 
cal system  recognizes  that  the  administration  is  depen- 
dent upon  the  legislature  we  find  that  this  kind  of  control 
of  the  legislature  over  the  administration  is  very  much 
greater.     Since  the  administration  must  keep  the  con- 

*  See  also  the  case  of  Ex  parte  Dalton,  44  Ohio  St.,  142,  which  holds  that  the 
legislature  may  punish  for  contempt  in  election  cases. 

'  Bryce,  American  Commonwealth,  I.,  154. 

*  Stengel,  Deuisches  Verwaltungsrecht,  204. 


272     CONTROL  OVER  THE  ADMINISTRATION. 

fidence  of  the  legislature  it  must,  in  the  nature  of 
things,  defend  its  policy  when  it  is  attacked  and,  since 
the  legislature  may  at  any  time  force  the  ministry  out 
of  office,  it  may  investigate  and  censure  the  administra- 
tion at  such  times  and  in  such  manner  as  it  sees  fit. 
Indeed  the  sanction  of  the  control  is  so  great  that  the 
control  itself  will  amount  in  actual  practice  to  just 
about  what  the  legislature  sees  fit  to  make  it.  If  the 
legislature  does  not  impose  bounds  upon  its  control  it 
may  through  its  exercise  practically  take  the  place  of 
the  administration  or  reduce  the  administration  to  such 
a  weak  position  that  it  will  be  all  but  impossible  for  it 
to  transact  properly  the  business  in  theory  assigned  to 
it.  This  the  legislature  has  done  in  Francej  Inter- 
pellations, addresses,  questions  as  to  its  policy  and 
censures  of  the  action  of  the  administration  have  been 
so  frequent  that  the  French  acting  executive  has  been 
completely  terrorized  and  paralyzed;  and  the  control 
which  the  legislature  possesses  and  which,  in  order  that 
the  government  may  be  well  conducted,  should  be  used 
with  moderation,  it  has  made  use  of  to  deprive  the 
administration  of  almost  all  discretion  and  practically 
to  concentrate  in  the  legislature  many  administrative 
functions.  The  existence  of  such  a  control  presupposes 
that  the  ministers  will  guide  the  legislature,  that  they 
will  have  its  confidence,  which  shall  not  be  withdrawn 
for  trivial  reasons.  The  ministry  in  such  a  political 
system  serves  or  should  serve  the  purpose  of  the 
standing  committees  of  those  legislatures  in  which  the 
ministry  is  not  represented.  Where  this  is  not  the 
case,  as  it  is  not  the  case  in  France,  the  ministry  and 
the  administration  become  the  servants  rather  than 
the  guides  of  the  legislature  and  naturally  become  so 


POWER  TO  REMEDY  SPECIAL  ABUSES,      273 

anxious  to  win  the  approval  of  the  legislature  that 
they  are  unable  wisely  to  conduct  the  government.  If 
this  legislative  control  is  not  to  degenerate  into  the 
performance  by  the  legislature  of  administrative  func- 
tions it  is  necessary  that  the  legislature  limit  its  exer- 
cise of  this  method  of  control.  This  is  exactly  what 
the  legislature  has  done  in  England.  There  the  min- 
istry are  not  the  servants  of  the  Parliament  but  on  the 
contrary  are  their  guides,  the  great  standing  committee 
of  the  Parliament  which  is  to  direct  all  its  business 
subject  to  the  necessity  of  getting  the  general  approval 
of  the  Parliament  on  its  policy  taken  as  a  whole.  This 
matter  of  the  parliamentary  control  in  England  is 
treated  very  fully  by  Mr.  Todd  in  his  Parliamentary 
Government  in  England}  He  lays  it  down  as  the  gen- 
eral rule  that  Parliament  is  designed  for  counsel  and 
not^for  rule/  for  advice  and  not  for  administration. 
On  the  authority  of  May  it  is  said  that  **  its  power  is 
exercised  indirectly."  ^  Since  the  passage  of  the  re- 
form bill  of  1867,  however,  the  House  of  Commons 
has  shown  a  disposition  to  encroach  more  and  more 
upon  the  sphere  of  government.  It  regards  any 
matter  as  the  proper  object  for  its  censure.  Resolu- 
tion after  resolution  is  proposed  with  the  object  of 
expressing  the  disapproval  of  Parliament  of  some  par- 
ticular administrative  practice  or  measure  * ;  and  if  the 
result  of  such  a  resolution  is  the  disapproval  of  Parlia- 
ment, according  to  May  "  ministers  must  conform  to  its 
opinion  or  forfeit  its  confidence."  Many  of  the  prece- 
dents cited  by  Mr.  Todd  go,  however,  to  show  that 
Parliament  does  not  always  in  unimportant  matters, 

^  2d  Ed.,  I.,  Chapters  vii.-xii.  ^  Ibid.,  I.,  414.  ^  Ibid.,  421. 

^  See  precedents  cited  by  Mr.  Todd,  op.  cit.,  I.,  422. 

VOL.  II — 18 


274     CONTROL  OVER  THE  ADMINISTRATION. 

even  in  case  of  its  disapproval,  go  so  far  as  to  force  the 
ministry  to  resign  or  even  to  conform  to  its  views. 
The  concrete  result  depends  very  largely  upon  the 
character  of  the  individual  case.  It  may  be  laid  down 
as  a  general  rule  that  Parliament  may  not,  as  a  result 
of  this  control,  proceed  to  give  orders  to  any  of  the 
subordinate  officers  of  the  government,  as  this  is 
regarded  as  actual  administration  rather  than  control.^ 
Of  late  years  it  has  become  a  common  practice  for 
Parliament  to  appoint  what  are  known  as  select  com- 
mittees for  the  purpose  both  of  acquiring  information 
with  a  view  to  legislation  and  of  examining  into  the 
constitution  and  management  of  the  various  depart- 
ments.^ Such  committees  are  appointed  either  at  the 
suggestion  or  with  the  approval  of  the  government. 
But  both  parties  are  represented  on  them  though  the 
party  in  the  majority  in  the  house  itself  is  given  the 
majority.  After  taking  evidence  from  every  available 
source,  and  it  would  seem  that  such  committees  have 
the  power  to  punish  for  contempt  the  refusal  to  answer 
questions,^  the  committee  reports  to  Parliament,  gener- 
ally embodying  in  its  report  practical  suggestions 
which  are  submitted  for  the  consideration  of  the 
government.'*  It  is  usual  to  leave  to  the  administration 
the  initiation  of  the  necessary  measures.^  Finally  as  a 
result  of  its  powers  of  control  and  investigation  Parlia- 
ment may  demand  the  presentation  by  the  administra- 
tion of  papers  and  documents,  though  the  rule  generally 
is  that  Parliament  will  not  require  the  government  to 
bring  forward  any  papers  which  in  its  opinion  should 
be  kept  secret  for  political  reasons.^ 

»  Todd,  op.  ciL,  I.,  421.  2  /^^-^^  j^    ^28. 

'  May,  Parliamentary  Law  and  Practice,  73,  74.  *  Todd,  op.  cit.,  I.,  432. 

^ See  precedents,  Ibid.  « Ibid.,  I.,  439  et  seq. 


CHAPTER  III. 

THE   LEGISLATIVE    CONTROL    OVER   THE   FINANCES. 

Through  its  control  over  the  finances  the  legislature 
exercises  a  control  over  the  general  policy  of  the  ad- 
ministration. For  the  conduct  of  the  entire  adminis- 
tration is  closely  connected  with  the  amount  of  money 
which  may  be  spent.  The  control  over  the  finances  is 
to  be  found  in  three  powers :  first,  in  the  power  any 
given  legislature  has  to  ^x  the  amount  of  money  which 
is  to  be  spent  by  the  administration  for  the  coming 
budgetary  period ;  second,  in  the  power  it  has  to  ^x 
the  purposes  for  which  money  has  to  be  spent ;  and 
third,  in  the  power  it  must  have,  if  the  second  power 
is  to  amount  to  anything,  to  ascertain,  after  the  expen- 
diture of  the  money,  whether  the  administration  has 
acted  in  accordance  with  the  provisions  of  law  fixing 
the  amount  to  be  spent  and  the  purposes  for  which 
money  is  to  be  spent. 

/. — Control  over  receipts. 

The  legislative  control  over  the  finances  in  its  modem 
form  was,  like  the  other  methods  of  legislative  control, 
developed  by  England.  Originally  the  only  way  in 
which  the  English  Parliament  endeavored  to  control 
the  financial  administration  was  by  fixing  the  amount 
of  money  which  could  be  raised  by  the  Crown  by 

275 


276     CONTROL  OVER  THE  ADMINISTRATION. 

means  of  imposing  taxes  upon  the  people.  The  Parlia- 
ment did  not  attempt  to  control  the  amount  of  money 
which  could  be  spent  nor  the  purposes  for  which  it 
should  be  spent.^  This  was  also  true  of  the  early 
American  colonial  government.^  The  later  develop- 
ment has  reversed  this  condition  of  things.  At  the 
present  time  most  of  the  receipts,  i,  e,  taxes,  are  fixed 
by  permanent  law.  No  given  Parliament  has  much  to 
do  with  receipts.  For  its  action  is  no  longer  necessary 
in  order  that  the  receipts  shall  come  in.  So  long  as 
the  law  establishing  the  taxes  is  not  repealed,  which 
will  require  the  combined  action  of  both  houses  of 
Parliament,  the  administration  may  go  on  collecting 
the  taxes  regardless  of  Parliament,  providing  it  acts  in 
accordance  with  existing  law.^  This  principle  has 
been  introduced  into  the  United  States.  Thus  in  the 
national  government  the  customs  duties  and  the  in- 
ternal revenue  taxes,  from  which  two  sources  most  of 
the  revenue  of  the  national  government  is  obtained,  are 
both  fixed  in  amount  by  permanent  law  in  that  the 
rates  which  may  be  levied  are  so  fixed.  The  amount 
of  money  which  is  received  from  these  sources  is  inde- 
pendent of  the  action  of  any  particular  Congress  and 
depends  rather  upon  the  business  and  prosperity  of 
the  country.  If  the  houses  of  Congress  take  no  action 
on  these  matters  the  duties  are  still  levied.  This  is 
true  also  of  the  other  receipts  of  the  national  govern- 
ment, such  for  example  as  tonnage  dues  and  the  re- 
ceipts of  the  post  ofiice  and  from  the  sale  of  public 

*  Cox,  Institutions  of  the  English  Government,  igg. 

'  Supra,  I.,  p.  53. 

'Gneist,  Das  Englische  Verwaltungsrecht,  1884,  I.,  431  ;  II.,  715.  At  the 
present  time  almost  the  only  tax  which  is  fixed  in  amount  by  each  Parliament 
is  the  income  tax. 


CONTROL  OVER  THE  FINANCES,  277 

lands.  A  given  Congress  has  generally  therefore 
nothing  to  say  as  to  the  amount  of  the  receipts  of  the 
government.  In  order  to  change  it  in  any  way  either 
the  two  houses  and  the  President  must  agree  or  -the 
two  houses  of  Congress  must  act  by  a  sufficiently  large 
majority  to  overcome  the  veto  of  the  President. 

The  same  rule  is  generally  true  of  the  receipts  in 
Germany  with  the  exception  of  those  of  the  imperial 
government.  Some  imperial  receipts  are  indeed  fixed 
by  permanent  law,  as  e,  g.  the  receipts  from  the  post 
office.  But  these  receipts  constitute  a  very  small  part 
of  the  total  receipts  of  the  empire.  The  greater  part 
is  to  be  found  in  the  matricular  contributions  which 
the  separate  members  of  the  empire  have  to  pay  into 
the  imperial  treasury  and  whose  amount  is  settled 
largely  in  accordance  with  the  population  of  the  par- 
ticular member.  The  separate  members  are  allowed 
to  collect  in  accordance  with  imperial  laws  taxes  on 
imports,  L  e.  customs  duties,  and  on  objects  of  domestic 
consumption  and  manufacture,  i.  e.  internal  revenue,  in 
order  to  pay  such  matricular  contributions.  The  actual 
amount  of  these  contributions  is  to  be  fixed  annually 
by  the  imperial  legislature.^  Therefore  the  larger  part 
of  the  receipts  is  under  the  control  of  each  imperial 
legislature  and  if  one  of  the  houses  of  the  legislature 
fails  to  act  or  if  both  houses  fail  to  agree,  while  the 
taxes  might  still  be  levied  in  the  particular  members 
of  the  Empire  the  receipts  from  them  would  not  be  at 
the  disposition  of  the  imperial  administration.  In  the 
separate  members  of  the  German  Empire,  however,  we 
find  as  a  rule  the  receipts  independent  of  the  yearly 
action  of  the  legislature.      Thus  in  Prussia,  the  consti- 

*  Imperial  Constitution,  Art.  70. 


278     CONTROL  OVER  THE  ADMINISTRATION. 

tution  provides  ^  that  the  taxes  as  fixed  by  law  shall 
continue  to  be  collected  until  the  law  fixing  them  has 
been  amended  or  repealed  which,  it  will  be  remem- 
bered, may  not  be  done  without  the  consent  of  the 
Crown,  the  chief  of  the  administration. 

In  France  the  action  of  each  legislature  each  year 
seems  to  be  necessary  in  order  that  the  receipts  may 
come  in,  and  thus  each  legislature  has  almost  complete 
control  over  the  receipts.  It  was  thought  by  the 
French  constitution-makers  that  they  were  introducing 
into  their  public  law  the  principles  of  the  English  law 
when  they  adopted  this  rule.  But  they  knew  the 
English  law  only  from  such  works  as  those  of  De 
Lolme  and  Benjamin  Constant.  These  writers,  partic- 
ularly Constant,  obtained  their  knowledge  of  English 
public  law  almost  entirely  from  Blackstone,  who  fails 
to  lay  the  stress  he  should  on  the  principles  which  are 
back  of  the  law,  but  which  are  still  of  great  import- 
ance.^ As  Blackstone  speaks  of  taxes  being  imposed 
only  with  the  consent  of  the  legislature,  and  lays  great 
stress  upon  the  powers  of  Parliament  to  withhold  sup- 
plies, it  was  only  natural  for  French  publicists  to 
believe  that  the  taxes  were  completely  in  the  control 
of  each  particular  Parliament,  and  that  if  there  were 
not  a  common  action  of  both  houses  it  would  be  im- 
possible for  the  Crown  to  obtain  supplies.  Therefore 
in  their  new  constitutions  the  French  adopted  in  its 
extreme  form  the  principle  that  taxes  must  be  voted 
annually  by  the  legislature.  It  is  true  that  such  taxes 
as  the  customs  duties  are  fixed,  as  regards  their  rate, 

^  Art.  109. 

'  See  Gneist,  Das  Englische   Verwaltungsrecht^  I.,  433,  note  ;  Ibid.^  Gesetz 
und  Budget^  85. 


CONTROL  OVER  THE  FINANCES.  279 

by  a  permanent  law.  But  in  accordance  with  the 
theory,  it  is  at  the  same  time  provided  that,  in  order 
that  even  such  rates  be  collectible  by  the  administra- 
tion, annual  action  or  authorization  by  the  legislature  is 
necessary;  and  it  is  an  actual  crime  upon  the  part  of 
any  administrative  officer  to  collect  a  tax  which  has 
not  been  so  authorized.^  Finally  the  ordinary  courts 
are  to  decide  whether  a  tax  which  the  administration 
attempts  to  collect  is  legal.^ 

We  find  similar  instances  of  the  annual  vote  of  taxes 
by  the  legislature  in  some  of  the  American  common- 
wealths. Indeed  this  seems  originally  to  have  been  all 
but  the  universal  rule  as  a  result  of  the  kind  of  tax 
which  was  adopted.  This  was  the  general  property 
tax,  and  the  way  in  which  it  was  levied  was  to  ascer- 
tain the  amount  of  money  to  be  spent,  and  then  appor- 
tion it  out  among  the  counties  of  the  commonwealth. 
This  of  course  necessitated  action  by  the  legislature  at 
each  of  its  sessions.  But  with  the  recent  changes  in 
the  tax  system  the  control  each  legislature  has  over  the 
receipts  has  been  considerably  lessened.  For  many  of 
the  taxes  are  now  fixed  as  to  rate  by  permanent  law, 
e,  g.  the  corporation  tax  and  the  inheritance  taxes,  and 
the  action  of  any  particular  legislature  is  no  longer 
necessary  to  their  collection. 

//. — Control  over  expenses. 

It  has  already  been  pointed  out  that  the  English 
Parliament  originally  contented  itself  in  the  exercise 
of  its  control  over  the  financial  administration  with 
fixing  the  amount  of  the  supplies  obtained  from  taxa- 

^  See  Constitutional  Law,  Feb.  24,   1875  ;  Penal  Code,  art.  174 ;  Ducrocq, 
Droit  Administratify  I.,  544.  '  Ducrocq,  loc.  cit. 


28o     CONTROL  OVER  THE  ADMINISTRATION. 

tion  whicli  were  to  be  placed  at  the  disposition  of  the 
Crown.  It  did  not  attempt  in  any  way  to  exercise  a 
control  over  the  disposal  by  the  Crown  of  the  money 
in  its  control,  regarding  the  spending  of  money  once 
raised  as  peculiarly  a  part  of  the  royal  prerogative. 
But  the  abuses  of  the  financial  administration  particu- 
larly by  the  Stuart  kings  led  the  Parliament  to  begin 
soon  after  the  restoration,  viz,^  in  1676,  regularly  to 
designate  the  purposes  for  which  the  money  should  be 
spent,  by  the  insertion  in  the  grant  of  what  was 
known  as  an  "  appropriation  clause."  *  This  clause  not 
only  designated  the  purposes  for  which  money  w^as  to 
be  spent  but  also  forbade  the  Crown  to  make  any  other 
use  of  the  money  granted  than  that  expressed  in  the 
clause.^  It  must  be  remembered,  however,  that  this 
clause  at  first  affected  only  the  extraordinary  revenue 
of  the  Crown,  L  e.  the  revenue  coming  from  taxation, 
and  was  also  of  a  very  general  character.  But  with 
the  gradual  enormous  increase  of  the  extraordinary 
revenue  and  at  the  same  time  the  decrease  not  only  in 
importance  but  also  in  actual  amount  of  the  ordinary 
revenue  (^.  e,  the  revenue  from  the  royal  domains,  etc^ 
the  legislature  got  into  its  hands  the  control  of  most  of 
the  expenses  of  the  government  as  well  as  that  of  the 
receipts  which  at  this  time  had  not  become  permanent. 
The  result  was  a  very  unstable  condition  of  the  finances. 
This,  it  was  felt,  weakened  the  power  of  the  state  par- 
ticularly since,  as  a  result  of  the  foreign  policy  of  Eng- 
land during  the  reign  of  William  III,  a  large  debt  had 

^  Cox,  Institutions  of  the  English  Government,  199.  Cox  cites  here  much 
earlier  instances  of  such  appropriation  clauses  but  says  they  were  of  rare 
occurrence. 

''In  1680  Sir  Edward  Seymour,  the  Treasurer,  was  impeached  for  not  observ- 
ing such  clauses.     Ibid.,  200,  note  (a),  citing  8  State  Trials,  127. 


CONTROL  OVER  THE  FINANCES,  281 

grown  up.  This  instability  was  remedied  in  the  fol- 
lowing way :  In  the  first  place  the  receipts  were  made 
stable  by  establishing  the  taxes  by  pemianent  law 
instead  of  making  the  action  of  each  Parliament  neces- 
sary in  order  that  they  might  flow  into  the  treasury. 
Further  all  the  revenues  were  to  be  paid  into  what 
were  called  the  funds,  viz,^  the  General  Fund,  the  South 
Sea  Fund,  the  Aggregate  Fund  which  were  later  con- 
solidated in  the  Consolidated  Fund.^  In  the  second 
place  in  order  to  insure  the  stability  of  certain  at  any 
rate  of  the  expenses  it  was  provided  that  such  expenses 
should  be  paid  out  of  these  funds  as  a  result  of  a  per- 
manent law.  Such  was  particularly  the  case  with  the 
interest  on  the  public  debt  which,  it  was  felt,  should  not 
be  dependent  on  the  annual  action  of  the  Parliament.*^ 
When  the  special  funds  were  consolidated  into  the 
Consolidated  Fund  these  expenses  became  chargeable 
upon  the  Consolidated  Fund.  Two  further  facts  con- 
tributed to  increase  the  stability  of  the  expenses. 
The  ordinary  revenue  of  the  Crown  was  not  controlled 
by  Parliament ;  and  from  it  were  defrayed  quite  a 
number  of  expenses  such  as  the  salaries  of  the  judges 
and  of  ambassadors.  Further,  the  revenues  from  cus- 
toms and  inland  revenues  were  for  a  long  time  reported 
net.  That  is,  the  expenses  of  their  collection  were 
defrayed  from  the  receipts  and  the  balance  only  was 
paid  into  the  Consolidated  Fund.^  This  arrangement 
was,  however,  felt  by  Parliament  to  give  it  too  little 
control  over  the  expenses,  so  it  was  finally  provided 
that  the  ordinary  revenue  of  the  Crown  should  like 

*  27  Geo.  III.,  c.  13. 

^See  3  Geo.  I.,  c.  7  ;  Gneist,  Das  Englische  Verwaltungsrecht,  1884,  686. 

'Gneist,  <3>.  «V.,  688. 


282     CONTROL  OVER  THE  ADMINISTRATION. 

the  extraordinary  revenue  be  paid  into  the  Consoli- 
dated Fund,  and  that  the  expenses  which  had  been 
defrayed  from  it,  as  e,  g.  the  salaries  of  the  judges  and 
of  ambassadors  and. the  civil  list  of  the  Crown,  should 
thereafter  be  paid  out  of  the  Consolidated  Fund  as  a 
result  of  permanent  law.*  This  is  regarded  as  some- 
what in  the  nature  of  a  contract  between  the  Crown 
and  Parliament,  and  is  renewed  regularly  at  the  acces- 
sion of  each  ruler.  The  civil  list  of  the  Crown  is,  it  is 
said,  just  about  equal  to  the  revenues  transferred  to 
the  fund  in  this  way.^  Further  within  almost  the  last 
generation  it  has  been  provided  that  the  receipts  from 
customs  and  internal  revenue  shall  be  reported  by  the 
Crown  to  Parliament  in  gross  and  paid  into  the  fund 
in  gross.  Parliament  has  thus  obtained  control  of  the 
expenses  of  collection  and  administration  inasmuch  as 
they  are  not  to  be  paid  out  of  the  fund  in  accordance 
with  permanent  law.^  The  result  of  this  arrangement 
is  that  the  Crown  presents  each  year  to  Parliament 
estimates  for  the  following  expenses  which  are  in  the 
control  of  each  Parliament;  Army  estimates.  Navy 
estimates,  Miscellaneous  Civil  Service  estimates,  and 
Revenue  Department  estimates  which  are  divided  up 
into  about  200  appropriations.*  These  are  the  only 
expenses  of  the  government  over  which  Parliament 
exercises  an  annual  control.  It  does  not  therefore  ex- 
ercise an  annual  control  over  the  civil  list  of  the 
Crown,  the  expenses  of  the  public  debt,  or  the  salaries 
of  judges  or  ambassadors,  but  does  over  the  army  and 
navy  estimates.     The  reason  why  the  army  and  navy 

»SeeI.  Geo.  III.,  c.  3. 

'  The  fund  is  now  regulated  in  its  main  features  by  17  and  18  Vict.,  c.  94. 

'  Gneist,  op.  cit.,  688. 

*  Gneist^  op.  cit,  691,  692,  citing  Pari.  Papers,  1880,  xlv.,  xlvi. 


CONTROL  OVER  THE  FINANCES,  283 

estimates  are  voted  every  year  is  to  be  found  in  tlie 
experience  of  the  people  under  the  reigns  of  the  Stuarts 
and  during  the  Commonwealth  when  the  army  was 
used  to  oppress  them.  Again  the  geographical  posi- 
tion of  England  is  such  as  not  to  make  it  absolutely 
necessary  that  the  sti'ength  of  the  army  shall  be  inde- 
pendent of  the  chance  of  an  agreement  of  both  houses 
of  Parliament.  It  is  to  be  noted  that,  notwithstanding 
the  fact  that  Parliament  has,  as  has  been  shown,  quite 
a  large  control  over  the  expenses  of  the  government, 
it  has  always  been  very  careful  not  to  interfere  very 
much  with  the  estimates  as  presented  by  the  Crown.  It 
has  never  refused  to  approve  the  estimates  as  a  whole, 
but  has  usually  contented  itself  with  making  minor 
changes  in  them.  It  is  felt  that  the  refusal  to  vote  the 
estimates  would  tend  too  much  to  cripple  the  adminis- 
tration ;  and  the  principles  of  ministerial  responsibility 
to  Parliament  have  brought  about  the  recognition  of 
the  fact  that  a  sensible  alteration  of  the  estimates  as 
brought  in  by  the  administration  is  equivalent  to  the 
expression  of  a  lack  of  confidence  in  it  and  will  in 
almost  all  cases  be  followed  by  the  dissolution  of  Par- 
liament or  the  resignation  of  the  ministers.^  It  is  fur- 
ther to  be  noted  that  the  position  of  the  ministers  as 
the  great  standing  committee  of  Parliament,  which  is 
to  examine,  before  it  is  presented,  every  important 
measure  and  is  to  guide  the  deliberations  of  Parlia- 
ment, has  brought  about  the  adoption  of  the  rule  that 
no  appropriation  of  any  importance  is  to  be  made 
except  on  the  proposition  of  the  Crown,  i,  e,  the  ad- 
ministration. It  may  happen  in  isolated  cases  that  the 
house  will  address  the  Crown  to  the  effect  that  certain 

*  Gneist,  op.  cit.,  723. 


284     CONTROL  OVER  THE  ADMINISTRATION. 

appropriations  be  made,  but  it  is  not  customary  for 
appropriations  of  any  importance  to  originate  other- 
wise than  with  the  Crown.  This  is  now  fixed  by  a 
standing  order  of  the  House  of  Commons/  Finally  it 
has  been  decided  as  a  result  of  long  practice  that  the 
control  of  Parliament  over  the  appropriations  shall  not 
be  so  made  use  of  as  to  compel  the  administration  to 
take  action  which  it  believes  is  unwise.  That  is  Par- 
liament may  not  tack  to  an  appropriation  bill  any 
clause  or  provision  foreign  to  it.  Whenever  such  an 
attempt  has  been  made  by  the  House  of  Commons  the 
House  of  Lords  has  regularly  thrown  out  the  objec- 
tionable bilL^ 

In  the  United  States  a  somewhat  similar  method  of 
insuring  the  stability  of  certain  of  the  expenses  has 
been  adopted.  As  has  been  shown  the  receipts  are 
permanent.  The  statutes  of  Congress  have  also  pro- 
vided for  quite  a  number  of  appropriations  which  are 
based  upon  permanent  law.  The  growth  of  the  na- 
tional debt  made  the  Congress  feel  the  same  fear  that 
had  been  felt  before  in  England  as  to  the  effect  on  the 
public  credit  of  the  country  of  the  dependence  of 
interest  and  sinking  fund  payments  on  congressional 
action.  There  was  therefore  adopted  a  system  of 
what  were  called  permanent  annual  appropriations 
established  by  permanent  law  which  should  be  suffi- 
cient authorization  to  the  administration  to  make  the 
necessary  payments  without  any  special  action  on  the 
part  of  the  Congress.  Among  these  permanent  annual 
appropriations  are  to  be  mentioned,  in  addition  to  the 
debt  payments,  the  expense  of  collecting  the  customs 

^  Standing  Order  of  June  25,  1852,  cited  in  Cox.,  op.  cii.,  192. 
'  Gneist,  op.  cit.,  727,  citing  Amos,  English  Constitution,  73. 


CONTROL  OVER  THE  FINANCES.  285 

duties,  the  salaries  of  judicial  officers,  and  the  expense 
of  purchasing  a  certain  amount  of  silver  each  year  in 
the  endeavor  to  keep  up  the  price  of  silver  and  to 
bring  about  ultimately  the  adoption  of  the  complete 
bimetallic  standard.  This  last  permanent  annual  ap- 
propriation may  be  evidenced  as  a  striking  example  of 
the  importance  of  these  permanent  appropriations  to 
those  who  are  interested  in  the  stability  of  a  certain 
expense.  Finally  as  a  result  of  the  decisions  of  the 
Supreme  Court  ^  the  fixing  of  salaries  by  permanent 
law,  which  is  often  the  case,  is  regarded  much  as  a 
permanent  annual  appropriation.  For  the  officer  whose 
salary  is  thus  fixed  may  sue  the  government  for  it. 
The  salaries  would  thus  have  to  be  paid  regardless  of 
the  action  of  Congress  unless  such  action  was  by  a 
majority  sufficient  to  override  the  President's  veto. 
This  decision  of  the  Supreme  Court  has  vastly  in- 
creased the  independence  of  the  administration.^  It  is 
indeed  true  that  the  act  organizing  the  Court  of  Claims 
provides  that  judgments  against  the  United  States 
shall  be  paid  out  of  the  appropriation  for  private 
claims;  but  in  time  of  conflict  between  the  Congress 
and  the  President  it  is  very  probable  that  the  Presi- 
dent would  conduct  the  government  and  would  have 
salaries  paid  without  annual  appropriations,  and  be 
able  to  do  so  successfully.  The  result  of  these  perma- 
nent annual  appropriations  is  that  more  than  half  of 
the  current  expenses  of  the  government,  exclusive  of 
pensions  and  salaries,  are  beyond  the  reach  of  any 
particular  Congress.     That  is,  it  is  not  necessary  in 

^  U.  S.  V.  Langston,  118  U.  S.,  389. 

^  See  also  Antoni  v.  Greenhow,  107  U.  S.,  769,  in  which  it  is  said  that  the 
declaration  by  the  legislature  that  money  shall  be  spent  is  an  appropriation  by 
law. 


286     CONTROL  OVER  THE  ADMINISTRATION. 

order  that  these  expenses  be  paid  that  there  be  any 
action  on  the  part  of  Congress  at  all.  The  failure  of 
Congress  to  act  or  to  agree  with  the  President  will  not 
affect  the  action  of  the  administration  in  the  carrying 
on  of  the  government  through  the  payment  of  a  large 
part  of  the  expenses.  The  particular  expenses  of  the 
government  which  are  under  the  control  of  each  Con- 
gress are,  those  of  the  army,  the  navy,  and  of  the 
other  branches  of  the  administration  with  the  excep- 
tion of  the  customs.  Congress  has  never,  as  has  the 
English  House  of  Commons,  divested  itself  of  the 
right  to  make  appropriations  other  than  those  proposed 
by  the  administration.  Indeed  in  practice  many  of  the 
most  unwise  appropriations  of  the  national  government 
are  made  on  the  proposition  of  Congress  and  not  on 
that  of  the  administration.  Congress  further  always 
makes  use  of  its  undoubted  right  to  cut  down  or 
amend  in  some  way  the  estimates  sent  in  by  the  ad- 
ministration. It  has  also  attempted,  by  tacking  to 
appropriations  provisions  objectionable  to  the  admin- 
istration, to  force  their  acceptance  by  it,  under  a  threat 
of  a  refusal  of  the  estimates,  but  the  determined  stand 
recently  made  by  one  of  the  Presidents  and  the  abso- 
lute impossibility  of  refusing  important  appropriations 
to  the  administration  have  finally  convinced  the  Con- 
gress that  this  is  not  a  proper  use  of  its  control  over 
the  finances. 

When  we  come  to  the  control  of  the  commonwealth 
legislatures  over  the  expenses  we  find  such  a  variety 
of  systems  that  it  is  impossible  to  say  what  is  the 
general  rule.  In  some  commonwealths  we  find  that 
the  amount  of  the  appropriations  is  fixed  almost  alto- 
gether by  the  administration  in  accordance  with  general 


CONTROL  OVER  THE  FINANCES.  287 

and  permanent  laws  over  which  a  given  legislature  has 
practically  little  control  ^ ;  and  it  has  been  held  that 
without  any  special  appropriation  the  payment  of 
salaries  fixed  by  permanent  law  may  be  enforced  by 
mandamus.^  In  other  and  indeed  in  most  cases  most 
of  the  appropriations  are  made  annually  or  biennially 
by  the  legislature.^  In  all  the  commonwealths  the 
legislature  has  the  power  to  make  appropriations  other 
than  those  proposed  by  the  administration  if  the  ad- 
ministration is  to  submit  estimates  to  the  legislature. 
Generally  also  the  legislature,  where  such  estimates 
are  submitted  to  it,  has  the  right  to  cut  them  down 
and  often  exercises  this  power.  But  as  a  result  of  the 
very  general  power  of  the  governor  to  veto  items  in 
appropriation  bills  *  the  legislature  may  not  force  the 
administration  to  take  action  not  approved  by  it  as  a 
result  of  tacking  such  a  provision  to  an  appropriation 
bill. 

In  France  the  legislature  has  just  as  complete  a 
control  over  the  expenses  as  over  the  receipts.  It  may 
also  and  does  as  a  matter  of  fact,  make  appropriations, 
estimates  for  which  are  not  presented  by  the  adminis- 
tration, to  the  great  detriment  of  the  budget,  and  has 
the  right,  which  it  not  unfrequently  exercises,  to  cut 
down  the  estimates  as  presented. ^ 

The  exact  control  which  the  legislature  has  over  the 

^  The  courts  seem  to  regard  this  practice  as  perfectly  proper.  See  People  v. 
Supervisors,  17  Hill  N.  Y.,  195  ;  John  J.  Townsend,  trustee,  v.  Mayor,  eic.^ 
77  N.  Y.,  542. 

'Nichols  V.  Comptroller,  4  Stew,  and  Port.  Ala.,  154. 

'  In  some  cases  this  is  required  by  the  Constitution,  Stimson,  op.  cii.,  p.  320  B. 
This  is  so  in  Arkansas,  Kansas,  Louisiana,  Missouri,  Ohio,  and  Texas. 

^  Supra,  I.,  p.  75. 

5  Ducrocq,  <7^.  «V, ,  I.,  533-544.  C/.  also  Leroy  Beaulieu,  Science  des  Fi- 
nances, chapter  on  Le  Vote  du  Budget. 


288     CONTROL  OVER  THE  ADMINISTRATION. 

expenses  in  the  German  Empire  does  not  seem  to  have 
been  fixed.  There  is  even  at  the  present  time  a  struggle 
going  on  between  the  believers  in  what  is  known  as 
French  liberalism  and  those  who  feel  that  the  existence 
of  a  strong  administration  requires  that  a  large  part  of 
the  expenses  should  be  independent  of  the  yearly- 
action  of  the  legislature.  So  far  the  result  is  that 
while  some  of  the  expenses  are  based  on  permanent 
law  and  while  others  are  fixed  for  a  term  of  years,  by 
far  the  larger  part  of  the  expenses  are  in  the  control 
of  the  legislature  whose  annual  action  is  necessary  in 
order  that  they  be  paid.  It  must,  however,  be  remem- 
bered that  a  large  part  of  the  expenses  of  the  imperial 
administration  are  defrayed  by  the  members  of  the 
empire.  Such  is  the  case  e,  g.  with  the  expenses  of 
collecting  the  customs  duties  and  the  internal  revenue. 
For  the  separate  members  of  the  empire  pay,  in  their 
matricular  contributions  only  the  net  income  of  these 
taxes.*  Among  the  expenses  of  the  imperial  govern- 
ment which  have  been  fixed  by  permanent  law  are  the 
interest  on  the  imperial  debt,  the  expenses  of  all  insti- 
tutions and  authorities  which  owe  their  establishment 
to  permanent  law,  i,  e.  the  salaries  of  all  officers  having 
permanent  positions,  since  judgments  against  the  treas- 
ury obtained  in  the  ordinary  courts  by  them  for  their 
salaries  have  to  be  paid.'^  The  main  expense  which  is 
fixed  for  a  term  of  years  is  the  expense  of  the  army, 
one  of  the  largest  items  of  the  imperial  budget.  The 
German  practice  on  this  matter  has  varied  considerably. 
But  the  latest  settlement  of  the  question  would  seem 
to  be  that  the  expenses  of  the  army  shall  be  fixed  for 
a  period  of  seven  years.     The  reason  why  it  has  seemed 

^  Meyer,  Deutsches  Staatsrecht^  546.  '  Meyer,  op.  cit.,  549. 


CONTROL  OVER  THE  FINANCES.  289 

necessary  to  give  to  the  army  expenses  a  more  per- 
manent character  than  is  possessed  by  most  of  the 
expenses  of  the  administration,  while  most  of  the 
countries,  which  have  adopted  most  fully  the  idea  of 
permanent  appropriations,  have  left  the  legislature  a 
large  control  over  the  army  expenses,  is  to  be  found  in 
the  geographical  position  of  the  German  Empire. 
Germany  has  almost  no  natural  boundaries  to  the  east 
and  west  and  on  both  of  these  frontiers  lie  hostile 
states  ready  to  take  any  advantage  of  the  least  symp- 
tom of  weakness.  A  strong  administration  of  military 
affairs  is  therefore  absolutely  necessary.  This  is  ac- 
complished by  this  arrangement,  which  is  known  as  the 
septennate.  For  during  the  periods  for  which  the  esti- 
mates are  voted  the  legislature  has  practically  no  control 
over  the  military  administration.  The  privilege  granted 
to  the  presiding  state  of  the  empire,  viz,^  Prussia,  which 
means  practically  the  Emperor,  to  veto  any  proposi- 
tion amending  the  laws  regarding  the  army,  gives  the 
Emperor  the  power  to  prevent  the  repeal  or  amend- 
ment of  the  septennate.^ 

In  the  separate  members  of  the  empire  the  rules 
with  regard  to  the  control  of  the  legislature  over  the 
appropriations  are  about  the  same  as  those  in  force  in 
the  empire.  Among  the  permanent  expenses  are  to 
be  mentioned  the  matricular  contributions  (at  least 
over  these  the  legislature  of  the  particular  member  of 
the  empire  has  no  control),  the  civil  list  of  the  prince, 
and  all  payments  to  be  made  as  a  result  of  the  applica- 
tion of  the  rules  of  private  law  inasmuch  as  they  may 
be  enforced  by  the  judgments  of  the  courts.* 

An  interesting  question  which  arises  in  this  connec- 

*  See  Imperial  Constitution,  Art.  7.  ^  Meyer,  op.  cit,  538. 


290     CONTROL  OVER  THE  ADMINISTRATION. 

tion  is  what  is  the  power  of  the  administration  with 
regard  to  the  payment  of  unforeseen  expenses  which 
arise  after  the  voting  of  the  appropriations  and  which 
must  be  made  when  the  legislature  is  not  in  session. 
France  and  England  are  about  the  only  countries  that 
attempt  to  regulate  this  matter  by  law.  Iii  France  it 
is  provided  that^  the  President  of  the  republic  may,  in 
case  the  legislature'  is  not  in  session,  enlarge  the 
amount  of  any  given  appropriation,  though  it  ex- 
pressly forbids  him  to  open  an  absolutely  new  appro- 
priation. This  is  to  be  done  by  a  decree  issued  after 
taking  counsel  with  the  Council"of  State  and  must  be 
submitted  to  the  legislature  at  the  opening  of  its  next 
session.  England  has  provided  a  series  of  funds,  viz.^ 
the  civil  contingencies  fund  and  the  treasury  chest 
fund  to  which  the  government  may  have  recourse.^ 
But  it  is  said  that  the  administration  is  "  strictly  ac- 
countable to  Parliament  for  all  such  transactions  and 
the  advances  so  made  out  of  these  funds  must  be  re- 
placed out  of  moneys  voted  by  Parliament  for  that 
purpose."  ^  Further  in  England  unexpended  balances 
of  appropriations  are  largely  at  the  disposition  of  the 
administration.  As  the  heads  of  the  administration, 
the  ministers,  are  always  responsible  to  the  Parliament, 
such  a  power  is  not  susceptible  of  great  abuse.* 

In  the  other  states  the  rule  generally  is  that  any 
modification  made  by  the  administration  in  the  appro- 
priations so  as  to  increase  the  amount  appropriated  is 
made  at  the  peril  of  the  administration.  Circumstances 
arise  also  even  in  states,  like  England  and  France, 
which  make  some  provision  for  the  payment  of  unfore- 

*  L.  Dec.  14,  1879.  3TqjJ(J^  ^^  ^n ^  Y.,  730. 


CONTROL  OVER  THE  FINANCES.  291 

seen  expenses,  when,  in  order  that  the  government 
may  go  on,  the  appropriations  must  be  exceeded.  Such 
cases  are  not  susceptible  of  juristic  treatment.  The  fact 
simply  presents  itself  to  the  administration  that  in  order 
that  the  government  may  go  on  the  law  must  be  broken. 
As  it  is  more  important  that  the  government  shall  go 
on  than  that  the  law  shall  be  observed,  the  universal 
practice  is  for  the  administration,  whether  it  is  repub- 
lican or  monarchical,  to  break  the  law  and  then  come 
before  the  legislature  for  an  indemnity.  The  qjiestion 
is  a  purely  political  one  and  the  action  of  the  adminis- 
tration will  be  judged  in  accordance  with  the  facts  of 
the  particular  case.  But  it  is  seldom  that  the  legisla- 
ture will  be  unreasonable.  Where  the  administration 
is  dependent  in  tenure  on  the  legislature  the  case  can 
never  be  a  serious  one.  For  the  result  of  the  disap- 
proval of  the  legislature  will  finally  be  the  overthrow 
of  the  ministry.  Where,  however,  the  administration 
is  independent  of  the  legislature  a  more  serious  case 
may  arise — a  case  which  must  be  settled  not  by  law  but 
by  politics.  Similar  instances  of  conflict  may  arise  in 
case  the  legislature  refuses  to  grant  the  appropriations. 
But  these  are  as  before  political  rather  than  legal 
questions. 

///. — Examination  of  accounts. 

In  order  that  the  control  which  the  legislature  pos- 
sesses over  the  administration  through  its  control  over 
the  receipts  and  expenses  may  be  of  any  value  it  is 
necessary  that  it  have  the  further  power  of  examining 
the  accounts  of  the  administration  after  the  execution 
of  the  budget.     In  this  way  and  in  this  way  alone  can 


292     CONTROL  OVER  THE  ADMINISTRATION. 

it  satisfy  itself  that  its  directions  relative  to  the  re- 
ceipts and  expenses  have  been  observed.  All  consti- 
tutions grant  some  such  power  to  the  legislature  ;  and 
the  usual  rule  is  that  the  legislature  makes  use  of  some 
authority  independent  of  the  administration  to  aid  it 
in  the  examination  which  it  makes.  This  is  the  case 
in  France,  England,  and  Germany.  In  France  it  is  the 
Court  of  Accounts,  whose  members  though  appointed 
by  the  President  are  irremovable,  which  examines  the 
accounts  of  all  administrative  officers  having  charge  of 
public  money  and  property,  and  which  thus  acquires  a 
large  knowledge  of  the  methods  of  action  of  the  ad- 
ministration in  the  execution  of  the  provisions  of  the 
budget  and  reports  its  findings  to  the  legislature.^  In 
Germany  both  in  the  empire  and  in  Prussia  a  similarly 
organized  body  with  a  similar  name  discharges  similar 
functions.^  These  bodies  both  in  France  and  Germany 
really  also  exercise  a  judicial  control  over  most  of  the 
actions  of  the  administration  relative  to  the  finances. 
In  England  the  comptroller  and  auditor  general,  who 
has  the  judicial  tenure,  examines  the  accounts  of  the 
officers  of  the  administration  (thus  having  a  judicial 
control)  and  has  the  further  power  of  preventing  the 
unauthorized  expenditure  of  money.  He  is  also  called 
upon  to  report  to  Parliament  the  results  of  his  investi- 
gations and  to  aid  it  in  its  endeavor  to  ascertain  how 
far  the  administration  has  observed  the  provisions  of 
the  appropriation  acts.^  In  the  United  States,  how- 
ever, the  legislature  acts  in  its  investigations  unaided 
by  any  other  authority.     Great  care  is  taken  both  by 

*  Boeuf.  Droit  Administratif,  84-102. 

'Meyer,  Deutsches  Staatsrecht,  540,  551. 

•Todd,  Parliamentary  Government  in  England,  II.,  569. 


CONTROL  OVER  THE  FINANCES.  293 

the  national  constitution  and  by  the  statutes  of  Con- 
gress to  ensure  the  full  publicity  of  the  accounts  of 
the  administration,  some  of  whose  departments  have  to 
report  directly  to  the  legislature  while  the  secretary 
of  the  treasury  has  to  report  to  it  in  full  the  entire 
receipts  and  expenditures  of  the  preceding  year/  The 
rules  of  the  House  of  Representatives  have  usually 
provided  ^  that  such  accounts  shall  go  to  the  speaker 
of  the  house  and  be  submitted  by  him  to  the  house  for 
reference.  They  are  then  to  be  referred  ^  to  one  of  the 
eight  standing  committees  on  expenditure  which  shall 
examine  them  together  with  the  manner  of  keeping 
them,  the  economy,  justness,  and  correctness  of  the  ex- 
penditures, their  conformity  with  appropriation  laws, 
the  proper  application  of  public  moneys,  the  security 
of  the  government  against  unjust  and  extravagant  de- 
mands, retrenchment,  the  enforcement  of  the  payment 
of  moneys  due  the  United  States,  the  economy  and 
accountability  of  public  officers,  the  reduction  or  in- 
crease of  pay  of  officers,  and  the  abolishment  of  useless 
offices.  Each  of  the  eight  standing  committees  on  the 
expenditures  of  the  departments  has  one  or  more  of 
these  subjects  within  its  purview  and  after  making  the 
necessary  examinations  is  to  report  to  the  house.  What 
the  legislature  will  do  in  case  of  unauthorized  expendi- 
tures or  of  failure  to  observe  the  provisions  of  the 
budget,  the  laws  and  the  rules  do  not  say ;  and  it  is  not 
the  habit  of  the  house  to  pass  any  law  or  resolution 
settling  and  affirming  the  actions  of  the  administration 
in  case  they  are  in  conformity  with  the  appropriation 
acts  and  releasing  the  officers  of  the  government  having 

^  Const.,  Art.  I.,  sec.  9,  par.  7  ;  U.  S.  R.  S.,  sees.  260,  261,- 266,  and  267. 
'  See  rule  42.  ^  Rule  n,  sec.  32. 


294     CONTROL  OVER  THE  ADMINISTRATION, 

control  of  the  execution  of  the  budget  from  all  further 
responsibility  for  it.  In  England  the  action  of  the 
House  of  Commons  is  very  similar.  There  is  a  committee 
of  acounts  which  is  to  pursue  the  same  kind  of  inves- 
tigations, but  which  is  aided  in  its  work  by  the 
comptroller  and  auditor  general.^  The  effect  of  their 
investigations  is  about  the  same.  That  is,  it  does  not 
seem  to  be  the  habit  of  the  house  to  take  any  formal 
action  as  to  the  release  of  the  officers  of  the  admin- 
istration from  responsibility  for  the  execution  of  the 
budget.  But  in  case  any  serious  irregularities  were 
discovered  which  the  house  felt  it  could  not,  with  jus- 
tice to  itself,  allow  to  pass  unnoticed,  the  remedy 
would,  in  accordance  with  the  general  principles,  be 
the  passage  of  a  vote  of  censure  or  of  lack  of  con- 
fidence in  the  administration  which  might  ultimately 
lead  to  the  overthrow  of  the  ministry.  In  France,  and 
Germany,  however,  the  result  of  the  investigations  of 
the  legislatures  into  the  conformity  of  the  actions  of 
the  administration  with  the  provisions  of  the  budget 
always  results  in  the  passage  of  a  law,  which,  if  nothing 
serious  is  discovered  involving  the  administration,  re- 
leases the  officers  controlling  the  administration  from 
all  responsibility  for  the  execution  of  the  budget.^  In 
France,  however,  this  law  comes  so  long  after  the 
execution  of  the  budget  that  it  really  does  not  amount 
to  much.  Indeed  the  investigation  by  the  legislature 
of  the  accounts  of  the  administrations  supervenes  so 
long  after  the  execution  of  the  budget  that  there  is 
plenty  of  time  in  the  peculiar  conditions  of  French 
politics  for  the  existence  of  several  separate  ministries 

^Gneist,  Das  Englische  Verwaltungsrecht,  1884,  731. 

'  Ducrocq,  Droit  Adminisiratif,  I.,  423  ;  Meyer,  op.  cit.,  539. 


CONTROL  OVER  THE  FINANCES.  295 

before  the  examination  is  undertaken  of  the  accounts 
of  any  particular  budgetary  year.  If,  however,  it 
happens  that  the  ministry  whose  accounts  are  being 
examined  is  in  office  at  the  time  of  the  examination 
the  result  of  the  discovery  of  any  unauthorized  ex- 
penditures might  be  its  fall.  There  is  further  a  crim- 
inal responsibility  which  might  be  enforced  before  the 
courts  even  if  the  ministry  were  out  of  office  for  col- 
lecting any  unauthorized  taxes.*  In  Germany  it  is 
difficult  to  see  what  would  be  the  result  of  the  dis- 
covery by  the  legislature  of  a  serious  lack  of  con- 
formity of  the  actions  of  the  administration  with  the 
provisions  of  the  budget.  As  the  principle  of  parlia- 
mentary responsibility  has  not  been  adopted  the  result 
would  certainly  not  be  the  retirement  of  the  ministry 
so  long  as  it  was  backed  by  the  Emperor  or  the  prince. 
Again  though  the  constitution  of  both  the  empire  and 
of  Prussia  would  seem  to  recognize  some  responsibility 
of  the  ministers  this  principle  has  not  been  sufficiently 
developed  to  permit  of  their  being  impeached.  Indeed 
the  Prussian  constitution  was  put  to  the  test  in  this 
very  matter  in  the  great  constitutional  conflict  over  the 
army  appropriations  in  1860-64  and  the  result  showed 
that  this  legislative  control  over  the  finances  was  of  no 
value  in  a  case  of  real  conflict  between  the  administra- 
tion and  the  legislature. 

»  Supra^  II.,  p.  27& 


CHAPTER  IV. 


IMPEACHMENT. 


This  like  the  other  methods  of  legislative  control  is 
derived  from  England.  The  method  of  impeachment 
seems  to  have  been  necessary  in  England  because  the 
English  law  did  not  allow  a  civil  or  criminal  suit  to 
be  brought  against  the  highest  officers  of  state  except 
with  extreme  difficulty.  It  was  thus  developed  mainly 
to  fill  up  a  gap  in  the  judicial  control.  A  further 
reason  for  its  development  is  to  be  found  in  the  im- 
possibility of  obtaining  a  conviction  of  the  great  nobles 
before  the  ordinary  courts  ^  and  in  the  necessity  of 
•some  means  of  legislative  control  in  the  days  when  the 
principle  of  the  parliamentary  responsibility  of  the 
ministers  had  not  been  developed.^  Since  its  develop- 
ment in  England  it  has  been  adopted  to  some  extent 
in  almost  all  constitutional  countries,  and  in  some 
cases  is  made  use  of  against  not  only  the  ministers  but 
also  all  civil  officers  of  the  government. 

The  ordinary  English  method  of  impeachment  was 
formed  in  analogy  with  the  ordinary  criminal  proce- 
dure, the  House  of  Commons  taking  the  part  of  the 
grand  jury  and  thus  bringiog  forward  the  impeach- 

*  Blackstone,  Commentaries^  IV. ,  360. 

'  For  its  history  see  Cox,  Institutions  of  the  English  Government ^  229  et  seg,^ 
468. 

296 


IMPEACHMENT.  297 

ment  or  indictment,  the  House  of  Lords  acting  as  the 
court/  The  grounds  for  impeachment  were  originally 
abuse  of  office  from  corrupt,  partial,  or  oppressive 
motives,  violation  of  the  law,  and  treason,  which  was 
usually  defined  by  the  court  of  impeachment  to  suit 
itself,  and  depended  very  much  upon  its  feeling 
towards  the  accused,^  but  later  came  to  include,  es- 
pecially during  the  reigns  of  the  Stuarts,  offences 
political  in  nature.^  The  punishment  originally  was 
death,  banishment,  fine,  or  imprisonment  in  the  dis- 
cretion of  the  court  of  impeachment.  Soon  after  this 
method  was  developed  there  grew  up  the  habit  of 
exercising  this  control  through  the  ordinary  process  of 
legislation,  i,  e,  by  the  passage  of  a  bill  of  attainder  in 
accordance  with  which  no  fair  trial  was  granted  the 
person  attainted.  This  seems  to  have  originated  with 
the  Tudors  and  was  quite  frequently  employed  during 
the  constitutional  struggle  of  the  seventeenth  century.* 
This  method  has,  however,  in  practice  been  abandoned 
as  it  was  grossly  unjust.  Parliament  still  of  course 
has  the  power  to  pass  a  bill  of  attainder  if  it  wishes  to, 
although  in  the  United  States  such  action  by  Congress 
is  forbidden  by  the  national  constitution.^  The  method 
of  impeachment  even,  has  with  the  development  of  the 
principle  of  the  Parliamentary  responsibility  of  the 
ministers,  rather  fallen  into  disuse,  the  last  case  being 
that  of  Warren  Hastings,  which  occurred  about '  the 
end  of  the  last  century.  The  other  methods  of  legisla- 
tive control  are  so  complete  that  it  is  difficult  to  see  in 
what  cases  it  could  be  applied  with  advantage.     The 

'  Ibid.,  229,  470,471, 

^  Gneist,  Das  Englische  Verwaltungsrecht  (1884),  436. 

*  Ibid.  *  Cox,  op.  ciU,  235,  465. 

^  Art.  I.,  sec,  9,  p.  3,  sec.  10. 


298     CONTROL  OVER  THE  ADMINISTRATION. 

power  still  remains  in  Parliament  and  may  be  made 
use  of  in  an  extreme  case  where  all  other  means  of 
control  fail  to  bring  the  administration  to  an  observance 
of  the  laws  or  customs  of  the  land. 

This  method  of  impeachment  has  been  adopted  in 
the  United  States  both  in  the  national  and  in  the 
commonwealth  governments.  The  national  constitu- 
tion provides  that  the  House  of  Representatives  shall 
have  the  sole  power  to  impeach  the  President,  vice- 
president  and  all  civil  officers  of  the  United  States  ^ ; 
that  the  Senate  shall,  with  the  chief  justice  of  the 
United  States  as  presiding  officer  in  case  the  President 
is  impeached,  have  the  sole  power  to  try  impeachments 
and  shall  convict  only  as  a  result  of  a  two-thirds  vote 
of  the  members  present "" ;  and  that  the  punishment  in 
case  of  conviction  shall  be  removal  from  office  and  dis- 
qualification to  hold  any  office  of  honor,  trust,  or  profit 
under  the  United  States  in  the  future,  with  the  impos- 
sibility of  pardon,  but  that  the  person  so  convicted 
shall  be  liable  to  indictment,  trial,  judgment,  and  pun- 
ishment according  to  law.^  The  causes  of  impeachment 
are  *  treason,  bribery,  and  other  high  crimes  and  mis- 
demeanors. There  have  been  two  views  as  to  the 
meaning  of  this  phrase.  One  is  that  the  only  cause  for 
impeachment  is  a  crime,  i.  e.  an  act  for  which  a  person 
may  be  indicted  and  punished  in  accordance  with  the 
law ;  the  other  assigns  a  much  wider  meaning  to  the 
phrase  and  claims  that  the  phrase  was  purposely  left 
vague  at  the  time  of  the  formation  of  the  constitution 
so  that  it  might  by  construction  be  made  to  include 
political  offences.     The  cases  in  which  the  article  in 

^  Art.  I.,  sec.  2,  p.  5  ;  art.  II.,  sec.  4.  2  ^rt  I.,  sec.  3,  p.  6. 

2  Art.  I.,  sec.  3,  p.  7.  4  Art.  III.,  sec.  4. 


IMPEA  CHMENT. 


299 


the  constitution  relative  to  the  causes  of  impeachment 
has  been  construed  are  few  in  number  and  some  of 
them  have  been  decided  for  jurisdictional  reasons  and 
are  therefore  of  little  value  in  throwing  light  on  the 
meaning  of  the  article.  Thus  the  first  case,  viz.^  that 
of  Senator  Blount,  decided  that  a  Senator  of  the  United 
States  could  not  be  impeached  inasmuch  as  he  was  not 
a  civil  ofiicer  of  the  United  States  in  the  meaning  of 
the  constitution,  while  the  last  case,  viz,^  that  of  a 
\(^  cabinet  officer  was  decided  largely  on  the  ground  that, 
as  such  officer  had  resigned  and  his  resignation  had 
been  accepted  by  the  President,  he  was  not  subject  to 
the  jurisdiction  of  the  impeachment  court.  The  only 
cases  in  which  the  person  impeached  has  been  con- 
victed are  those  of  Judge  Pickering,  who  was  convicted 
of  offences  distinctly  not  political ;  Judge  Humphreys, 
who  was  convicted  of  treason  in  the  beginning  of  the 
war,  his  treasonable  acts  being  the  making  of  a  speech 
in  favor  of  secession  and  acceptance  of  the  office  of 
judge  in  the  southern  confederacy.  On  the  other  hand 
Judge  Chase,  who  was  impeached  for  "  highly  indecent 
and  extra  judicial "  reflections  upon  the  government  of 
the  United  States  made  to  a  grand  jury  during  the 
time  when  the  alien  and  sedition  laws  were  in  force ; 
President  Johnson,  who  was  impeached  for  a  political 
offence  which  had  been  made  a  high  crime  and  misde- 
meanor by  act  of  Congress ;  and  Judge  Peck,  who  was 
impeached  for  arbitary  conduct  in  committing  for  con- 
tempt of  court  an  attorney  who  had  published  a  criti- 
cism of  one  of  his  opinions,  were  all  of  them  acquitted.^ 
It  would  seem  therefore  that  the  phrase  ''high  crimes 

^  See  Cyclopedia  of  Political  Science^  etc.^  sub  verba  Impeachment.     Article 
by  Alexander  Johnston. 


300     CONTROL  OVER  THE  ADMINISTRATION. 

and  misdemeanors  "  does  not  include  political  matters. 
This  is  largely  due  to  tlie  fact  of  the  large  majority 
which  is  required  for  conviction  in  the  court  of  im- 
peachment. For  in  the  case  of  an  impeachment  for  an 
act  of  a  political  character  party  feelings  will  be  ar- 
rayed against  each  other,  and  in  the  state  of  political 
parties  in  the  United  States  it  will  be  very  unusual 
for  any  party  to  have  such  complete  control  of  the 
court  of  impeachments  as  to  be  able  to  get  the  requi- 
site two-thirds  majority. 

The  constitutions  of  most  of  the  commonwealths 
recognize  the  right  in  the  legislature  to  impeach  and 
convict  the  officers  of  the  government  but  the  pro- 
visions differ  somewhat  in  their  details.  One  constitu- 
tion, viz.^  that  of  Oregon,  expressly  forbids  impeach- 
ment. The  majority  of  the  constitutions  provide  for 
the  impeachment  of  all  civil  officers.  Some  expressly 
refer  to  the  governor.^  The  cause  for  impeachment  in 
most  of  the  constitutions  is  crime,  but  some  provide 
that  immorality,  official  corruption,  or  misconduct  and 
even  incompetence,  incapacity,  or  neglect  of  official 
duty,  and  favoritism  will  be  sufficient  cause.^  All  the 
commonwealths  in  which  provision  is  made  for  im- 
peachment, with  the  exception  of  Nebraska,  provide 
that  the  lower  house  of  the  legislature  is  to  initiate  the 
impeachment  generally  as  a  result  of  a  majority  vote. 
In  Nebraska  the  impeachment  is  to  be  initiated  by  the 
legislature  in  joint  assembly  of  the  two  houses.  In  all 
but  two  commonwealths  the  impeachment  is  to  be  tried 
by  the  senate,  a  vote  by  two-thirds  of  whose  members 
or  two-thirds  of  whose  members  present,  being  usually 

*  Stimson,  American  Statute  Law,  63. 

*  So  in  Louisiana,  West  Virgina,  Virginia,  and  Florida.     See  Jbid.,  64. 


IMPEACHMENT.  301 

necessary  for  conviction.  In  New  York,  however,  the 
judges  of  the  court  of  appeals,  the  highest  court,  are 
joined  with  the  senate  and  together  with  it  form  the 
court  of  impeachment,  while  in  Nebraska  the  supreme 
court  is  the  court  of  impeachment.^  The  effect  of  con- 
viction is  in  almost  all  cases  removal  from  office  and  in 
most  cases  also  disqualification  to  hold  office.  But  gen- 
erally persons  impeached  may  be  at  the  same  time  in- 
dicted and  punished  in  the  usual  way.^ 

In  France  as  in  England  the  adoption  of  the  principle 
of  the  parliamentary  responsibility  of  the  ministers  has 
made  impeachment  almost  unnecessary.  Still  one  of 
the  constitutional  laws^  provides  that  the  President, 
who  is  responsible  to  the  legislature  only  for  treason,* 
may  be  impeached  only  by  the  Chamber  of  Deputies 
and  can  be  judged  only  by  the  Senate,  and  that  the 
ministers,  who  are  individually  responsible  to  the 
legislature  for  their  personal  acts  and  solidly  responsi- 
ble for  their  general  policy,^  may  be  impeached  for 
crimes  committed  in  the  exercise  of  their  functions  and 
tried  in  the  same  way.  Finally  the  President  may 
constitute  the  Senate  into  a  high  court  of  justice  to 
judge  all  attempts  against  the  safety  of  the  state.^ 

While  the  responsibility  of  the  ministers  in  Prussia 
and  of  the  chancellor  in  the  empire  is  recognized  in 
the  constitutions  of  both  Prussia  and  the  German 
Empire  no  law  has  been  passed  by  either  government 
which  regulates  the  matter  sufficiently  in  detail  to 
permit  an  impeachment  trial.^  In  most  of  the  other 
members  of  the  empire,  however,  provision  is  made 

^  Ibid.  ^  Ibid.,  p.  65. 

»L.  July  16,  1875,  art.  12.  *  L.  Feb.  25.  1875,  art.  6. 

*  L.  Feb.  25,  1875,  art.  6.  « L.  July  16,  1875,  art.  12. 

'  Meyer,  Deutsches  Siaatsrecht,  476  ;  480,481. 


302     CONTROL  OVER  THE  ADMINISTRATION. 

for  impeachment.  As  a  general  thing  only  ministers 
may  be  impeached  as  in  France.  The  causes  for  im- 
peachment are  generally  the  commission  of  crimes  and 
the  violation  of  the  constitution.  The  impeachment  is, 
where  there  are  two  houses,  undertaken  by  either  house 
of  the  legislature  or  by  a  concurrent  resolution  of 
the  two  houses.  The  court  is  either  the  highest 
judicial  court  or  a  special  court  composed  for  the 
most  part,  of  judges,  one  half  of  whom  are  chosen  by 
the  prince,  one  half  by  the  legislature.  Punishment 
on  conviction  is  generally  as  in  the  United  States, 
removal  from  office  and  disqualification  for  office  in 
the  future.^ 

^  IHd,^  i^^^  et  seq. 


LIST  OF  AUTHORITIES. 


Abbreviatio  Placitorum,  II.  193. 
Adams,  H.  C,  Public  Debts,  I.  10. 
Allinson  and  Penrose,  City  Government  of  Philadelphia,  in  Johns  Hopkins 

University  Studies  in  Historical  and  Political  Science,  V.  1-73  :  I.  207, 

209,  210,  216. 
AixiNSON  AND  Penrose,  Philadelphia,  I.  197,  201,  204,  211,  212,  214-216, 

218. 
Amos,  English  Constitution,  II.  284. 
Anson,  Sir  William,    The  Law  and  Custom  of  the  Constitution,  I.  98-100, 

\iar\ib,  143,  163,  239,  245  ;  II.  53. 
Arnold,  Municipal  Corporations,  3d  Ed.,  I.  255. 
Ash,  Mark,  Consolidation  Act,  I.  200. 
AUCOC,  Conferences  sur  V Administration  et  le  Droit  Administratif,  I.  35,  50, 

85,  88,  107,  108,  III,  112,  148,  150,  154,  159,  26S,  271-275,  286  ;  II. 

217,  218,  221,  222,  225,  226,  230-232,  235,  239. 
Benton,  Abridgment  of  the  Debates  in  Congress,  II.  90,  91. 
Benton,  Thirty  Years'  View,  I.  130. 
Beverly,  History  of  Virginia,  I.  58. 
Bishop,  Criminal  Law,  II.  79. 
Black,  The  History  of  the  Municipal  Ownership  of  Land  on  Manhattan  Island, 

in  Studies  in  History,  Economics,  and  Public  Law,  edited  by  the  Uni- 
versity Faculty  of  Political  Science  of  Columbia  College,  I.  3  :  I.  200,  201. 
Blackstone,  Commentaries,  II.  193,  195,  296. 
Block,  M.,  Dictionnaire  de  r Administration  franfaise,  1. 148,  273,  274 ;  II.  46- 

48,  67,  74,  79.  81,  82,  84,  87,  95. 
Block,  Dictionnaire  de  la  Politique,  II.  187. 
Boeuf,  Droit  Administratif  I.  8,  16,  85,  87,  88,  no,  132,  155, 157,  158,  287, 

288  ;  II.  153,  259,  260,  292. 
BORNHAK,  Geschichte  des  Preussischen  Verwaltungsrecht,  I.  296,  297. 
BoRNHAK,  Local  Government  in  Prussia,  in  Annals  of  American  Academy  of 

Political  and  Social  Science,  III.  403  :  I.  320. 
BoRNHAK,  Preussisches  Staatsrecht,  I.  92,  115,  141  ;  II.  161,  162. 
BoRNHAK,  Preussisches  Verwaltungsrecht,  II.  80,  177. 
Brodhead,  History  of  New  York,  I.  167,  169. 

303 


304  LIST  OF  A  UTHORITIES. 

Bryce,  James,  The  American  Commonwealth,  I.  52,  104,  203,  207,  208,  213, 

218  ;  II.  271. 
Burgess,  Poliiical  Science  and  Comparative  Constitutional  Law,  I.  3,  13,  39,  84, 

93,  97.  98,  99. 
Burroughs,  Taxation,  II.  122. 
BusBEE,  J.  M.,  City  Government  of  Boston,  in  Johns  Hopkins  University  Studies 

in  Historical  and  Political  Science,  V.  73-135  :  L  199-201,  207-214,  2i6. 
Campbell,  History  of  Virginia,  I.  58. 

Chalmers,  Local  Government,  I.  i(\b-2.^i,  258,  260,  262  ;  II.  64. 
Church,  Habeas  Corpus,  II.  201,  202,  205. 
Clark,  Debates  of  the  Convention  of  1821,  I.  77. 
Cocker,  Civil  Government  in  Michigan,  I.  183,  185. 
COMSTOCK,  The  Civil  Service  of  the  United  States,  II.  33,  41,  45. 
CONKLING,  Executive  Power,  I.  61. 
Cooley,  Constitutional  Limitations,  I.  24.  ;  II.  20,  21. 
COOLEY,  Taxation,  2d  Ed.,  I.  12,  13,   18,  230;  II.   115,   116,   120,   122,   147, 

153,  166. 
Cooley,  Torts,  II.  169. 

Cox,  Institutions  of  the  English  Government,  I.  129  ;  II.  276,  280,  296,  297. 
Craik,  The  State  and  Education,  I.  258. 

Crawley,  Handbook  of  Competitive  Examinations,  II.  54-56,  67. 
Dareste,  La  yustice  Administrative  en  France,  II.   173. 
Dareste  DE  la  ChAVANNE,  Histoire  de  V Administration  en  France,  I.  269, 

285. 
De  FrANQUEVILLE,    U  Gouvernement  et  le  Parlement  Britanniques ,  I.   112, 

264. 
De  Grais,  Handbuch  der  Verfassung  und  Verwaltung,  etc.,  I.  155,  301  ;    II. 

48,  49,  246. 
D^THAN,  L Organisation  des  Conseils  Gendraux,  I.  268,  269,  271,  275. 
De  Tocqueville,  HAncien  Regime  et  la  Revolution,  II.    170. 
Dicey,  A.  V.,  The  Law  of  the  Constitution,  I.  6,  112,  155  ;  II.  223. 
Dillon,  Municipal  Corporations,  I.  24,  43,  173,  175,  188,  197,  202-204,  206, 

207,  209,  213,  214,  219,  223  ;  II.  Ill,  116,  149,  152-154,  156. 
Documents  Relating  to  the  Colonial  History  of  New  York, I.  53,  54, 

166. 
DUCROCQ,  Traits du  Droit  Administratif,  I.  35,  85,   271,  286-288;     II.  128, 

161,  162,  228,  229,  232,  279,  287,  294. 
Dunning,  W.  A.,  The  Constitution  in  Civil  War,  in  Political  Science  Quar- 
terly, III.  454 :  I.  32,  121. 
DwiGHT,  T.  W.,  Harrington,  in  Political  Science  Quarterly,  II.  16:  II.  20. 
Eliot,  President,  One  Remedy  for  Municipal  Misgovernment^va.  The  Yotxtox, 

Oct.,  1891,  I.  217  ;  II.  13. 
Elliot's  Debates,  I.  52. 

Elmes,  Webster,  Executive  Departments,  I.  64. 

Fisher,  S.  P. ,  Suspension  of  Habeas  Corpus,  ih  Political  Science  Quarterly,  III. 
163 :  I.  63. 


LIST  OF  AUTHORITIES,  305 

FowLE,  The  Poor  Law,  I.  237. 

GiTTERMAN,  The  Council  of  Appointment,  in  Political  Science  Quarterly,  VII, 

80:  I.  54;  II.  15. 
Gneist,  Constitutional  History  of  England,  II.  193,  194. 
Gneist,  Das  Englische  Par  lament,  etc.,  II.  12. 
Gneist,  Das  Englische  Verwaltungsrecht,  1884,  I.  28,  98,  124,  125,  144,  149, 

154,  236  ;  II.   14,  53,  65,  79,  80,  106,  124,  125.  138,  140,  154,  167,  181, 

188,  189,  196,  197,  209,  210,  215,  216,  240,  263,  276,  278,  281-284,  294, 

297. 
Gneist,  Der  Rechtsstaat,  I.  31 ;  II.  240. 
Gneist,  Die  Kreisordnung,  I.  300. 
Gneist,  Gesetz  und  Budget,  II.  278. 
Gneist,  Les  Riformes  locales  en  Prusse^  in  Revue  Generale  du  Droit  et  des 

Sciences  Politiques,  Oct.,  1886,  I.  299,  300,  310,  317,  328. 
Gneist,    Self  government,    Communalverfassung  und    Verwaltungsgerichte^    I, 

162,  193,  198,  248-250. 
Gneist,   Verwaltung,  Justiz,  und  Rechtsweg,  I.  92. 
Goodnow,  Local  Government  in  England,  in  Political  Science  Quarterly,  II. 

638:  I.  162. 
Goodnow,  Local  Government  in  Prussia,  in  Political  Science  Quarterly,  IV, 

260:  I.  295,  297,  299,  324;   II.  II. 
Goss,  John  D.,  The  History  of  Tariff  Administration  in  the  United  States  in 

Studies  in  History,  Economics,  and  Public  Law,  edited  by  the  University 

Faculty  of  Political  Science  of  Columbia  College,  I.  No.  2  :  I.  45,  153, 
Greenleaf,  Evidence,  II.  82. 
GUGGENHEIMER,    The   Development  of  Executive  Departments,    in   Jameson, 

Essays  in  the  Constitutional  History  of  the  United  States,  I.  128. 
GUMPLOWicz,  Das  Oesterreichische  Staatsrecht,  I.  16,  129  ;  II.  13. 
Hammond,  J.  B.,  History  of  Political  Parties  in  the  State  of  New  York^  I.  79, 
Hare,  Walks  in  London,  II.  33. 

Herbert  and  Jenkin,  The  Councillor's  Handbook^  I.  242,  244,  251, 
High,  Extraordinary  Legal  Remedies,  I.  82  ;  II.  73,  193,  194,  203. 
High,  Injunctions,  II.  203. 
HiLLiARD,  Injunctions,  II.  209. 
Holland,  Elements  of  Jurisprudence,  I.  7. 
How  AND  Bemis,  Municipal  Police  Ordinances,  II.  112. 
Howard,  Introdi4ction  to  the  Local  Constitutional  History  of  the  United  States^ 

Book  III.  Chapters  I.  and  11.  passim,  I.  165  et  seq. 
Howe,  W.  W.,  Municipal  History  of  New  Orleans,  Johns  Hopkins  University, 

Studies  in  Historical  and  Political  Science,  VII.  71-155  :  !•  209,  210. 
Institutes  of  Justinian,  I.  15. 
Johnston,  A.  R.,  On  Impeachment,  in  Lalor's  Cyclopaedia  of  Political  Science, 

etc.,  II.  481  :  II.  5,  299. 
Kent,  Commentary  on  the  Charter  of  the  City  of  New  York,  I.  200,  201. 
Kidd,  Benjamin,  The  Civil  Service  as  a  Profession,  in  Nineteenth  Century, 

October,  1886,  XX.  491  :  II.  55. 


3o6  LIST  OF  A  UTHORITIES. 

KiRCHENHElM,  Einfuhrung  in  das  Verwaltungsrecht,  I.  i.  4,  lo,  ii,  15,  20. 
LAFERRifeRE,  La  JuHdiction  Administrative,  II.  74,   75,   80,  l6i,  171,  175, 

176,  227,  232,  235,  243,  253,  254,  256. 
Leclerc,  La  Vie  municipale  en  Frusse,  Extrait  des  Annales  de  I'lScole  libre  des 

Sciences  Politiques,  I.  332,  335. 
Leidig,  Preussisches  Stadtrecht,  I.  328. 
Leroy-Beaulieu,  La  Science  des  Finances,  II.  287. 
Light  WOOD,  The  Nature  of  Positive  Law,  I.  7,  16. 
LOENING,  Deutsches  Verwaltungsrecht,  I.  114,  115,  132,  141,  146,   148,  15S, 

303,  311,  318  ;  II.  49,  79.  80,  83,  106,  120,  163,  170,  242,  260. 
Low,  Seth,  Municipal  Government,  in  Bryce,  American  Commonwealth,  I. 

630 :  I.  215,  224. 
Macaulay,  History  of  England,  I.  126. 
Mackay,  Ae.  J.  G. ,  The  Science  of  Politics,  its  Methods  and  its  UsCy  in  the 

Juridical  Review,  II.  i  :  I.  7. 
May,  Parliamentary  Law  and  Practice,  II.  274. 
McCrary,  The  Law  of  Elections,  3d  Ed.,  II.  18. 
Mechem,  Law  of  Officers,  I.  149,  II.  i,  5-7,  19-24,  26,  28,  29,  31,  32,  63, 

70-72,  81,  95-100,  no,  115,  116,  161,  164,  165,  168,  204. 
Meier,  Reform  der  Verwaltungsorganisation,  I.  296,  297. 
M]&t6rie-Larrey,  Les  Emplois  Publics,  II.  48. 
Meyer,  Deutsches  Staatsrecht,  I.  89-91,  95,  114,  116,  117,  140,  148  ;  II.  288- 

290,  292,  301,  302. 
Meyer,  Deutsches  Verwaltungsrecht,  I.  45  ;  II.  240-242,  246,  247. 
Miller,  The  Constitution,  I.  24. 
MOMMSEN,  Romisches  Staatsrecht,  II.  149,  170. 
Montesquieu,  Esprit  des  Lois,  I.  20,  27. 
Morehouse,  Supervisor's  Manual,  I.  181,  183. 
Opinions  of  Attornies  General, /ajj2w. 
OsTROGORSKi,  M.,  Woman  Suffrage  in  Local  Government ^  in  Political  Science 

Quarteriy,  VI.  677  :  II.  28. 
Palgrave,  King's  Council,  II.  193-195,  197. 
Parey,  Verwaltungsrecht,  II.  170. 

Parker  and  Worthington,  Public  Health  and  Safety^  II.  120,  126 
Penrose,  see  Allinson  and  Penrose. 
Poore,  Charters  and  Constitutions,  I.  53,  57. 
Powers,  F.  P.,  Railroad  Indemnity  Lands,  in  Political  Science  Quarteriy,  IV. 

452  :  I.  69. 
Powers,  F.  P.,    The  Reform  of  the  Federal  Service,   in   Political   Science 

Quarterly,  III.  260 :  II.  37,  38,  85,  92. 
Preussen  im  Bundestag,  I.  300. 
Probyn,  Local  Government  and  Taxation  in  the  United  Kingdom^  I.  240,  248, 

256,  257. 
Reeves,  History  of  the  English  Law,  II.  194. 
Richardson,  The  Court  of  Claims,  in  Southern  Law  Review,  reprinted  in 

volume  XVII.  of  Ct.  of  CI.  Reports  :  II.  158. 


LIST  OF  AUTHORITIES.  307 

Robinson,  J.  H.,  Original  Features  in  the  United  States  Constitution^  in  Annals 

of  American  Academy  of  Political  and  Social  Science,  I.  222  :  I.  52. 
ROttiman,  Das  Nord-Amerikanische  Bundesstaatsrecht,  I.  52,  69,  105,  130. 
Ryley,  Pleadings,  II.  193. 

Sarwey,  Allgemeines  Verwaltungsrecht,  I.  11,  21,  26-28,  31,  32. 
Sarwey,  Das  Oeffentliche  Recht,  II.  150,  153,  244. 
SCHULZE,  Deutsches  Staatrecht,  I.  89-92,  129,  132,  140,  142,  148  ;  II,  74,  81, 

95,  100. 
Seeley,  J.  R.  Life  and  Times  of  Stein,  I.  297. 
Shaw,  Albert,  Municipal  Government  in  Great  Britain,  in  Political  Science 

Quarterly,  IV.  199  :  I.  255. 
SiMONET,  Droit  Public  Administratif  II.  227,  236. 
Smith,  Practice  at  Quarter  Sessions,  I.  239  ;  II.  196,  216. 
Smith,    Munroe,    State,    Statute,   and  Common  Law^   in    Political    Science 

Quarterly,  III.  147  :  I.  40. 
Snow,  Marshall  W.,  City  Government  of  St.  Louis,  in  Johns  Hopkins  Uni- 
versity Studies  in  Historical  and  Political  Science,  V.  135-155  :  I.  204, 

209,  213,  216,  218. 
Stengel,  Lehrbuck  des  Deutschen  Verwaltungsrecht,  I.  i,  4,  121,  154,  158;  II. 

I,  128,  271. 
Stengel,  Organisation  der  Preussischen  Verwaltung,  I.  41,  114,  268,  303,  304, 

308,  311,  312,  315,  319,  323,  324,  326  ;  II.  248-251,  253-256,  258. 
Stengel,  IVorterbuch  des  Deutschen  Verwaltungsrecht,  1. 115,  305  ;  II.  66,  76, 

83,  87,  100,  122,  244,  245. 
Stephen  and  Miller,  The  County  Council  Compendium,  I.  242,  245. 
Stimson,  American  Statute  Law,  I.   7,  27,   74-76,   78-80,  102,  103,  135,  179, 

227  ;  II.  18-21,  70,  160,  287,  300,  301. 
Stone,  Practice  of  yustices  of  the  Peace  at  Petty  and  Special  Sessions,  9th  Ed. 

I.  239,  241. 

Stubbs,  Constitutional  History  of  England,  I.  97,  122,  123,  162,  163;  II.  193- 

195. 
Todd,  Alpheus,  Parliamentary  Government  in  England,  I.  98-101,  129,  132, 

143,  148,  150 ;  II.  53,  76,  85,  155,  273,  274,  290,  292. 
Viner,  Abridgment,  II.  201,  202. 

Von  ROnne,  Staatsrecht  der  Preussischen  Monarchic,  II.  49,  51,  52,  l6i,  162. 
Wharton,  Criminal  Law,  I.  18  ;  II.  108. 
Wharton,  Criminal  Pleading  and  Practice,  II.  182,  183. 
Whitridge,  F.  W.,  Rotation  in  Office,  in  the  Political  Science  Quarterly,  IV. 

284:  II.  91. 
Whitridge,  F.  W.,  Legislative  Inquests,  in  Political  Science  Quarterly,  I.  84: 

II.  270. 

WiGRAM,  The  Justices'  Note-Book,  I.   239,  240. 

Wood,  History  of  Long  Island,  I.  169. 

Worthington,  see  Parker  and  Worthington. 

ZORN,  Das  ReichsstcMtsrecht,  I.  16,  93-96,  116-119,  129,  140. 


INDEX. 


Acceptance  of  office  necessary  to  valid 

incumbency,  ii.  24 
Acceptance  of  resignation  of  officer, 

ii.  93,  94 

Accounts,  court  of,  in  France  and 
Germany,  ii.  291  ;  examination  of 
by  legislature,  ii.  291 

Administration,  application  of,  to  the 
courts  to  execute  the  law,  ii.  124  ; 
branches  of,  i.  2-4 ;  commercial 
action  of,  i.  9  ;  ii.  103  ;  contractual 
acts  of,  i.  35  ;  controlled  by  the 
legislature,  i.  33  ;  relation  of,  to 
courts,  i.  34  ;  definition  of,  i.  4 ; 
fills  up  details  in  the  administrative 
law,  i.  28  ;  ii.  no ;  discretion  of, 
)j.  136;  expresses  will  of  the  state,  ii. 
106  ;  executes  the  will  of  the  state, 
ii.  119  ;  a  function  of  government, 
i.  I  ;  participation  in,  of  localities, 
i.  38  ;  importance  of  remedies 
against  action  of,  ii.  105  ;  repre- 
sentative of  the  sovereign,  i.  10  ; 
an  organization,  i.  4 ;  powers  of 
compulsion  of,  ii.  J20 ;  records 
papers,  ii.  131  ^  socialistic  action 
of,  ii.  104,  130  ;  summary  procedvire 
of,  ii.  126,  127  ;  sovereign  or  gov- 
ernmental action  of,  i.  10  ;  ii.  103  ; 
when  it  may  apply  physical  force, 
ii.  122 


Administration,  see  Executive 
Administration  of  financial  affairs,  i.  3 
Administration  of  foreign  affairs,  i.  2 
Administration  of  internal  affairs,  i.  3 
Administration  of  judicial  affairs,  i.  3 
Administration  of  justice,  i.  3 
Administration  of  military  affairs,  i.  2 
Administrative  acts  of  special  applica- 
tion, i.  35  ;  ii.  112 
Administrative  action,  directions  of, 
i.  2  ;  ii.  102  ;  methods   and   forms 
of,  ii.  102 
Administrative  centralization,  ii.  140 
Administrative  control,  in  general,  ii. 
140  ;  over  localities,  i.  43  ;  in  Eng- 
land, i.  259  ;  in  France,  i.  290,  292  ; 
in  France  over  general  councils  of 
the  departments,  i.  280  ;  in  Prussia 
over    localities,    i.    314,    336  ;    in 
United  States,  i.  228 
Administrative  courts,  in  France,  ii. 
220  ;  councils  of  the  prefecture,  ii. 
233  ;  council  of  revision,  ii.  237  ; 
council  of  state,  ii. ,  238  ;  courts  of 
enumerated    jurisdiction,  ii.    221  ; 
educational  courts,  ii.  236  ;  freedom 
of  appeal,  ii.  225;  judges  of,  not  inde- 
pendent of  administration,  ii.   223  ; 
judges  of,  professional  and  learned 
in  the  law,  ii.  224  ;  jurisdiction  of, 
ii.  226  ;   procedure  in,  ii.  226 
Administrative  courts  in  Germany,  ii, 
248 


309 


3IO 


INDEX, 


Administrative  courts  in  Prussia,  cir- 
cle committee,  ii.  252 ;  district 
committee,  ii.  253  ;  jurisdiction  of, 
ii.  248  ;  organization  of,  ii.  251  ; 
supreme  court,  ii.  255  ;  procedure 
in,  ii.  256 

Administrative  execution,  ii.  127  ;  of 
government  claims,  ii.  151 

Administrative  function  of  executive 
power,  i.  50 

Administrative  jurisdiction  in  general, 
ii.  146,  190  ;  definition  of,  ii.  148  ; 
history  of,  in  England,  ii.  192  ; 
history  of,  in  France,  ii.  217  ;  in 
France,  appeal  to  council  of  state 
for  excess  of  powers,  ii.  229 ;  his- 
tory of,  in  Germany,  ii.  240  ;  in 
Germany,  administrative  courts,  ii. 
245  ;  in  Germany,  powers  of  the 
ordinary  courts,  ii.  244  ;  in  the  Uni- 
ted States,  of  federal  courts,  ii.  210; 
when  courts  may  review  decisions 
of  questions  of  fact  and  expediency, 
ii.  206 

Administrative  law,  aims  of,  ii.  138  ; 
complements  constitutional  law,  i. 
8  ;  definition  of,  i.  8  ;  distinguished 
from  constitutional  law,  i.  8,  15  ; 
distinguished  from  criminal  law,  i. 
16  ;  distinguished  from  international 
law,  i.  15  ;  distinguished  from  pri- 
vate law,  i.  10,  14  ;  exists  in  Eng- 
land and  United  States,  i.  6  ;  details 
of,  filled  up  by  the  administration, 
ii.  no  ;  meaning  of  term,  i.  7,  8  ; 
use  of  term  beginning  in  England 
and  United  States,  i.  7  ;  nature  of 
rules  of,  ii.  106  ;  protected  by  crim- 
inal law,  i.  17  ;  reason  of  failure  to 
recognize  it  in  England  and  United 
States,  i.  6,  7  ;  reason  for  separate 
treatment  of,  i.  9  ;  sanctioned  by 
the  penal  law,  i.  16  ;  ii.  108  ;  supple- 
ments constitutional  law,  i.  8 

Administrative  orders,  i.  35  ;  ii.  112 

Administrative  procedure,  ii.  115 


Age  as  a  qualification   for  office  in 

United  States,  ii.  31 
American  local  administration,  i.  178 

{^See  Local  Administration  in  United 

States.) 
Amtsbezirk  in  Prussia,  i.  320 
Amtsvorsteher  in  Prussia,  i.  303,  316. 

{^See  Justice  of  Peace  in  Prussia.) 
Appointment  to  office,  aim  of  method 

of,  ii.  16  ;  by  legislature,  constitu- 
tionality of,  ii.  22  ;  law  of,  ii.  22  ; 

may  not  be  revoked,  ii.  23  ;  what 

constitutes  an,  ii.  22 
Appropriations,  control  of  legislature 

over,  ii.  279  ;  permanent  annual,  in 

United  States,  ii.  284 
Arrest  as  a  means  of  executing  the 

law,  ii.  121 
Arrondissement  in  France,  i.  283 
Assessments,  ii.  113 
Assessor  in  German  civil  service,  ii, 

51 
Authority,  administrative,  ii,  i 


B 


Ballot,  ii.  20 ;  secrecy  of,  in  United 
States,  ii.  21  ;  not  thrown  out  by 
courts  for  trifling  irregularities,  ii.  21 

Bezirk,  in  Prussia,  i.  305.  {See  Gov- 
ernment in  Prussia.) 

Bezirksausschuss,  in  Prussia,  i.  307, 
{See  District  committee  in  Prussia,) 

Bishops  in  England,  appointed  by 
Prime  Minister,  i.  144 

Bismarck,  influence  of,  on  Prussian 
local  administration,  i.  300 

Board  of  education,  i.  203 

Board  of  guardians  in  England,  i.  248 

Board  of  officers,  ii.  81 

Board  of  supervisors,  power  of,  i.  i8o 

Boards,  when  advantageous,  ii.  7 

Borough,  see  Cities  and  Villages. 

Borough  in   United  States,   i.    218 
{See  ViHage.) 

Branches  of  administration,  i.  £ 


INl^EX. 


3" 


Bundesrath,  i.  ii6.  {See  Federal 
council.) 

Bureaucracy,  the  administrative  sys- 
tem of  Europe,  ii.  9  ;  character  of, 
ii.  9  :  evils  of,  ii.  10,  et  seq.  ;  when 
advantageous,  ii.  12 

Burgomaster  in  Prussia,  general 
powers  of,  i.  333  ;  member  of  city 
committee,  i.  330 


Cabinet  in  England,  how  formed,  i. 
143  ;  origin  of,  i.  126  ;  in  France, 
i.  138  ;  in  Germany,  i.  141  ;  in 
United  States,  i.  134 

Case,  statement  of,  ii.  196,  216 

Cause  for  removal  of  officers  review- 
able by  courts,  ii.  98,  206 

Central  administration,  i.  48  ;  sphere 
of,  i.  45 

Central  administrative  control  over 
cities  in  Prussia,  i.  330 

Central  and  local  government  in 
Prussia,  i.  301,  314 

Central  approval  of  local  police  ordi- 
nances, ii.  112 

Central  government,  sphere  of,  i.  39, 

45 

Centralization  of  the  administration, 
ii.  140 

Certiorari,  lost  its  importance  in  Eng- 
land, ii.  197  ;  power  of  federal 
courts  to  issue,  ii.  211  ;  purpose  of, 
ii.  200  ;  weight  of  evidence  may  be 
considered  on,  ii.  207  ;  {See  Writs, 
common  law) 

Chancellor  in  England,  ii.  193 

Chancellor  of  German  empire,  control 
of  Federal  Council  over  his  ac- 
counts, i.  119  ;  head  of  adminis- 
tration, i.  140  ;  presides  over  Fed- 
eral Council,  i.  1 16 ;  only  responsible 
minister  of  empire,  i.  94  ;  responsi- 
ble for  acts  of  Emperor,  i.  95,  96 

Chancery,  court  of,  ii.  194 


Character  as  a  qualification  for  ap- 
pointed offices,  ii.  32,  46,  48 

Chiefs  of  divisions  in  United  States, 
ii.  38 

Chief  examiner  in  civil  service  in 
United  States,  ii.  39 

Circle  in  Prussia,  i.  314  ;  pays  pro- 
vincial taxes,  i.  313  ;  rural,  i.  321 ; 
urban,  i.  309,  321 

Circle  committee  in  Prussia,  i.  315 ; 
controls  Landrath,  i.  315  ;  formed 
on  the  model  of  the  English  petty 
sessions,  i.  316  ;  jurisdiction  of,  as 
an  administrative  court,  ii.  252 ; 
supervises  actions  of  the  justices  of 
the  peace,  i.  316 

Circle  diets  in  Prussia,  i.  320  ;  elec- 
tions for,  i.  321  ;  duties  of,  i.  324 

Circle  officers,  service  as,  obligatory 
and  unpaid,  i.  316 

Citizenship  as  a  qualification  for  office 
in  United  States,  ii.  30 

City  committee  in  Prussia,  i.  330 

City  comptroller  in  United  States,  i. 
210 

City  council,  see  Municipal  council 

City  courts  in  United  States  out- 
growths of  city  council,  i.  200 

City  departments,  see  Municipal  de- 
partments, i.  210 

City  in  England,  who  were  originally 
citizens  of,  i.  194 ;  history  of,  to 
i8th  century,  i.  193  ;  incorporation 
of,  i.  196 ;  origin  of,  i.  193  ;  origin 
of  city  council,  i.  195  ;  and  in  United 
States,  somewhat  private  in  char- 
acter originally,  i.  199,  200 ;  qito 
warranto  against,  i.  197 

City  in  Prussia,  administration  of 
central  affairs  in  the  cities,  i.  330 ; 
local  autonomy  of  the  cities,  i.  330 ; 
departments,  i.  334  ;  elections,  i. 
331 ;  executive,  i.  332 ;  obligatory  and 
unpaid  service  as  municipal  officer, 
i.  332  ;  police,  i.  331 ;  ward  over- 
seers, i.  335 


312 


INDEX. 


City  in  United  States,  i.  193  I  history 
of,  i.  199  ;  organization  of,  i.  207  ; 
power  of  legislature  over,  i.  202  ; 
present  public  character  of,  i.  202  ; 
originally  had  no  taxing  power,  i. 

201 

City  treasurer  in  United  States,  i.  210 

Civil  courts,  control  of,  over  the  ad- 
ministration, ii.  149 
_Civil  service,  in  France,  ii.  46  ;   in 
Germany,  ii.  48 

Civil  service  in  United  States,  chief 
examiner,  ii.  39  ;  commissions,  ii. 
39 ;  eligible  list,  ii.  43 ;  general 
characteristics  of  present  system  of 
filling  offices,  ii.  45  ;  term  of  pro- 
bation, ii.  44 

Civil-service  commission,  in  England, 
ii.  56  ;  in  Germany,  ii.  51  ;  in 
United  States,  ii.  39 

Civil-service  examinations,  compari- 
son of  various  plans  of,  ii.  56  ;  in 
England,  ii.  54  ;  in  France,  ii.  47  ; 
in  Germany,  ii.  50 ;  in  United 
States,  ii.  40 

Civil-service  reform  in  the  United 
States,  ii.  34 

Civil-service  rules  in  the  United 
States,  ii.  35  ;  classification,  ii.  37  ; 
constitutionality  of,  ii.  35,  36  ;  ef- 
fect of,  on  power  of  appointment  of 
heads  of  departments,  ii.  35,  36 

Claims  of  government,  how  prose- 
cuted, ii.  150 

Clauses  acts  in  England,  i.  264 

Clerks  in  civil  service  in  England,  ii. 
54  ;  in  France,  ii.  47  ;  in  Germany, 
ii.  51  ;  in  United  States,  ii.  37 

Colonial  governors  in  England,  im- 
portant, appointed  by  Premier,  i.  144 

Commander-in-chief,  member  of  Privy 
Council  in  England,  i.  124 

Commercial  action  of  administration, 
i.  9  ;  ii.  103 

Commission  to  office  not  necessary  for 
appointment,  ii.  23 


Committees  of  legislature,  power  of 
to  imprison  for  contempt,  ii.  269, 

274 

Commonwealth  administration  in 
United  States,  decentralization  of, 
i.  152 

Commune  in  France,  i.  285  ;  history 
of,  i.  285  ;  Napoleonic  legislation 
as  to,  i.  286.  {See  Mayor,  and  Muni- 
cipal Council.) 

Compensation  of  officers,  ii.  68.  {See 
Officers,  salaries  of.) 

Competitive  examinations  in  Eng- 
land, ii.  54,  et  seq.  ;  in  France,  ii. 
48  ;  in  United  States  civil  services, 

ii.  43 

Comptroller  and  auditor-general  in 
England,  ii.  292 

Conflicts  of  jurisdiction  between  judi- 
cial and  administrative  courts,  ii, 

257 
Consolidated  fund  in  England,  ii.  281 
Consolidated  municipal  corporations 

act  of  1882,  i.  254 
Contentieux  administratif  ,  ii.  226 
Constitutional  law,  aims  of,  ii.  137  ; 
distinguished    from   administrative 
law,  i.  8,  15 
Contracts  of  administration,  i.  35  ;  of 
local  corporations,  ii.  152  ;  respon- 
sibility of  government  for,  in  con- 
tinental Europe,  ii.  161 
Control  over  the  administration,   ii. 
135  ;  administrative,  in  general,  ii. 
140  ;  administrative  jurisdiction,  ii. 
190  ;  administrative  jurisdiction  in 
England    and   the  United    States, 
ii.  200  ;  administrative  jurisdiction 
in  Germany,  ii.  240  ;    administra- 
tive jurisdiction  in  France,  ii.  217  ; 
court  of  claims  in  United  States, 
ii.    156  ;    impeachment,    ii.    296  ; 
interests    to    be    regarded    in    the 
formation  of  the,  ii.  137  ;  judicial,    y 
ii.  142,  144  ;  kinds  of,  ii.  140  ;  legis-     / 
lative,  ii.  143,  ii.  262  ;  methods  of. 


INDEX. 


m 


ii.  138  ;  petition  of  right  in  Eng- 
land, ii.  154  ;  power  of  criminal 
courts  to  punish  officers,  ii.  179  ; 
powers  of  federal  courts,  ii.  210  ; 
power  of  police  courts,  ii.  178  ;  suits 
against  government  in  ordinary 
courts  in  United  States,  ii.  158  ; 
suits  against  central  administration, 
ii.  154 ;  suits  by  government,  ii. 
150 ;  suits  in  civil  courts  against 
government  for  contracts  and  torts 
in  continental  Europe,  ii.  161  ;  suits 
against  local  corporations,  ii.  152  ; 
suits  against  officers,  in  France  and 
Germany,  ii.  169  ;  in  United  States 
and  England,  ii.  163  ;  through  the- 
ory of  unjust  enrichment,  ii.  155, 
159  ;  when  courts  may  review  deci- 
sions of  fact  and  discretion,  ii. 
206 

Coram  non  judice^  responsibility  of 
oflScers  for  acts,  ii.  164 

Councils  of  advice  in  France,  i.  86, 
III,  284,  292 

Council  of  appointment  in  New  York, 
i.  56,  76,  78 

Council  of  Arrondissement  in  France, 
i.  283 

Council  of  the  king,  French,  i.  268 

Council  of  ministers,  i.  141 

Council  of  the  prefecture  in  France, 
i.   274 ;    administrative   courts,    ii. 

233 
Council  of  revision  in  France,  ii.  237 
Council  of  state  in  France,  an  admin- 
istrative court,  ii.  238  ;  appeal  to, 
against  acts  of  the  President,  i.  88, 
282  ;  appeal  to,  for  excess  of  powers, 
ii.  229  ;   compared  with  American 
Senate,  i.  113  ;  a  council  of  advice, 
i.  Ill  ;  functions  of,  i.  iii  ;  history 
of,  i.  107  ;  organization  of,  i.  108 
Council  of  state  in  Germany,  i.  114 
County  commissioner  inUnited  States, 
origin  of,  i.  168  ;  powers  of,  i.  180 
County  in  England,  i.  241;    county 


aldermen,  i.  242  ;  the  county  chair- 
man,  i.  242  ;  the  county  council, 
local  powers  of,  i.  245  ;  the  coun- 
cil, powers  of,  i.  243  ;  the  county 
council,  organization  of,  i.  242  ; 
the  county  council,  powers  of, 
enumerated  by  statute,  i.  244  ;  quali- 
fications for  the  county  council,  i. 
242  ;  subdivisions  of  county,  i.  246  ; 
suffrage,  i.  242 

County  in  United  States,  agents  of 
central  government,  i.  174  ;  in 
American  colonies,  i.  166  ;  has  be- 
come a  corporation,  i.  172;  corporate 
capacity  of,  i.  173  ;  not  originally  a 
corporation,  i.  172  ;  loose  organiza- 
tion of,  i.  181  ;  has  no  sphere  of 
independent  action,  i.  176  ;  officers 
elected  by  people,  i.  178  ;  in  New 
England,  i.  185  ;  not  important  in 
early  New  England,  i.  166  ;  in  New 
York,  i.  182  ;  powers  of  county  au- 
thority, i.  186 ;  important  in  early 
southern  colonies,  i.  166,  190 ;  in 
southern  states,  i.  189  ;  in  Virginia, 
i.  190 

Courts,  control  of,  over  acts  of  Eng- 
lish Crown,  i.  loi  ;  control  of,  over 
French  President,  i.  85  ;  control  of, 
over  action  of  Federal  Council,  i. 
121  ;  control  of,  over  acts  of  Ger- 
man prince,  i.  93  ;  control  of,  over 
governor  of  commonwealth,  i.  82 ; 
executive  functions  of,  i.  29  ;  do  not 
control  political  acts  of  executive, 
i.  34  ;  power  of,  to  control  or  revise 
special  acts  of  administration,  i.  35; 
control  of,  over  President  of  United 
States,  i.  73;  relation  of  adminis- 
tration to,  i.  34  ;  will  declare  ordi- 
nances void  if  illegal,  i.  156.  {See 
Judicial  authorities.) 

Court  of  accounts  in  France  and  Ger- 
many, ii.  292 

Court  of  claims,  ii.  156 

Court  leet,  i.  194 


314 


INDEX. 


Court  of  sessions  in  early  American 
colonies,  i.  i66 

Crime,  disqualification  for  office,  ii. 
32,  46,  48 

Criminal  courts,  control  of,  over  the 
administration,  ii.  148,  178 

Criminal  law,  aim  of,  ii.  137 ;  dis- 
tinguished from  administrative  law, 
i.  16  ;  a  law  of  sanction,  i.  17 

Crown  suits  act,  ii.  151 

Curia  regis  in  England,   i.    122 ;  ii. 

193 
Customs  administrative  law,  ii.  107 

D 

Decisions,  i.  35 

De  facto  officers,  ii.  25 

De  facto  offices,  do  not  exist,  ii.  25 

Departments,  executive,  i.  127.  {See 
Executive  departments.) 

Department  in  France,  executive  offi- 
cers of,  i.  272  ;  general  council  of, 
i.  277  ;  prefect,  i.  272 

Department  of  public  works.of  finance, 
etc.,  see  Executive  departments,  i. 
127 

Departmental  commission  in  France, 
i.  275  ;  duties  of,  i.  276  ;  how 
elected,  i.  275 

Deputies,  when  not  officers,  ii.  2 

Disciplinary  courts  in  Germany,  i. 
118 ;  ii.  247 

Disciplinary  power,  ii.  86 

Discretion  of  administration,  ii.  136 

Distribution  of  powers,  the  theory  of, 
i.  19.     {^See  Separation  of  powers.) 

District  attorney,  ii.  181 

District  in  France,  i.  283 

District  of  Columbia,  power  of  su- 
preme court  of,  ii.  211 

District  committee  in  Prussia,  appel- 
late jurisdiction  of,  i.  308  ;  controls 
action  of  "  government "  president, 
i.  306,  308  ;  duties  of,  i.  308  ;  how 
formed,  i.  307  ;  jurisdiction  of,  as 
an  administrative  court,  ii.  253 


District  council  in  France,  i.  283 
District  councils  bill  in  England,  i, 

252 
Dorfschuhen  in  Prussia,  i.  318.     i^See 

Town  officers  in  Prussia.) 
Droit  administratif,  i.  6 
Due  process  of  law,  ii.  116 
Duties  of  officers,  ii.  77 


Education,  general,  necessary  for  ad- 
mission to  civil  service  in  Europe, 
ii.  47,  49 

Educational  courts  in  France,  ii.  236 

Election  to  office,  aim  of  method  of, 
ii.  16 ;  effect  of  ineligibility  on, 
ii.  22  ;  faults  of  this  method  of  fill- 
ing office,  ii.  17  ;  law  of,  in  United 
States,  ii.  18  ;  notice  of  place  of,  ii. 
20  ;  notice  of  time  of,  ii.  19  ;  regu- 
lations of,  directory,  ii.  20  ;  what 
constitutes  an,  ii.  21  ;  when  the 
proper  method  of  filling  offices,  ii.  17 

Eligible  list,  in  English  civil  service 
ii.  55  ;  in  United  States  civil  service, 

ii.  43 

Elective  principle  in  localities  in 
United  States,  i.  168 

Employment  in  government,  ii.  2 ; 
created  by  contract,  ii.  3  ;  distinc- 
tion of,  from  office,  ii.  2 

Ends  of  the  State,  i.  38 

English  administration  has  become 
centralized,  i.  154 

English  Crown,  acts  of,  countersigned 
by  a  minister,  i.  99  ;  administrative 
powers  of,  i.  100  ;  an  authority  of 
general  powers,  i.  97 ;  historical 
sketch  of,  i.  97  ;  general  position 
of,  i.  97  ;  irresponsible,  i.  99,  loi  ; 
limitations  of  power  of,  i.  99  ;  ordi- 
nance power  of,  i.  loi  ;  effect  of 
principle  of  parliamentary  respon- 
sibility of  ministers  on  position  of, 
i.  100 ;  remedies  against  acts  of,  i. 

lOI 


INDEX. 


315 


Equitable  remedies  in  England  and 
United  States,  origin  .of,  ii.  194 ; 
rules  as  to,  ii.  209 

Examinations  for  entrance  into  muni- 
cipal service  in  United  States,  i. 
217.  i^Sei  Civil  service,  competitive 
examinations.) 

Exchequer  in  England,  origin  of,  i.  122 

Execution  against  local  corporations, 

ii.  153 

Execution  of  the  law,  ii.  120  ;  admin- 
istrative, ii.  127  ;  by  judicial  process, 
ii.  124  ;  means  of,  ii.  119  ;  methods 
of,  ii.  123 

Execution  of  the  will  of  the  state  by 
the  administration,  ii.  119 

Executive,  power  of  to  initiate  legisla- 
tion, i.  27  ;  legislative  acts  of,  i. 
28,  35  ;  legislative  functions  of,  i. 
26  ;  ordinance  power  of,  i.  27  ;  polit- 
ical acts  of,  not  controlled  by  courts, 
i.  34  ;  position  of,  i.  37  ;  relation 
of,  to  courts,  i.  34  ;  relation  to 
other  authorities,  i.  31  ;  relation  to 
legislature,  i.  31  ;  veto  power  of,  i. 
27.     {^See  Administration.) 

Executive  in  England,  i.  97.  {See 
English  Crown.) 

Executive  in  France,  i.  83  etseq.  {See 
President  of  France.) 

Executive  in  Germany,  i,  89.  {See 
German  prince  and  German  Empe- 
ror.) 

Executive  in  United  States,  i.  52  <r/ 
seg.  {See  President  of  United  States 
and  Governor  of  commonwealth.) 

Executive  authority,  chief,  in  general, 
i.  48 

Executive  councils,  i.  102  ;  in  France, 
i.  107  {see  Council  of  state,  French); 
in  Germany,  i.  114  {see  Federal 
council  and  Council  of  State  in  Ger- 
many); in  United  States,  1.  10.  {See 
Senate.) 

Executive  departments,  i.  127  ;  geo- 
graphical arrangement  of,  i.  129 ; 


how  organized,  i.  129  ;  method  of 
distributing  business  of,  i.  128 

Executive  functions  of  judicial  au- 
thorities, i.  29 ;  of  the  legislature, 
i.  25 

Executive  power  in  general,  i.  49 ; 
administrative  function  of,  i.  50 ; 
American  conception  of,  in  1787,  i. 
59  ;  consists  of  two  functions,  i.  49  ; 
difficult  to  formulate,  i.  48  ;  govern- 
mental function  of,  i.  49  ;  history 
of,  in  United  States,  i.  52  ;  political 
function  of,  i.  49 

Expenses  of  government  when  fixed 
by  permanent  law,  ii.  279 

Extortion,  ii.  71,  82 

Extraordinary  legal  remedies,  ii.  200. 
{See  Writs,  common  law.) 

F 

Federal  Council  of  German  Empire, 
i.  116  ;  chancellor  presides  over,  i. 
116  ;  committees  of ,  i.  116  ;  control 
of,  over  Emperor,  i.  118,  120  ;  func- 
tions of,  i.  117  ;  ordinance  power  of, 
i.  118;  organization  of,  i.  116; 
power  of,  to  decree  federal  execu- 
tion, i.  120 ;  remedies  against 
action  of,  i.  121  ;  sessions  of,  i.  116 

Federal  execution  in  Germany,  i.  120 

Fees  for  official  services,  ii.  71 

Feudal  system,  influence  of,  on  Euro- 
pean method  of  local  administration, 
i.  268 

Financial  administration,  i.  3      ^ 

Fines,  ii.  120  a-*'"' 

Firma  burgi^  i.  193 

First  lord  of  treasury  in  England, 
powers  of,  i.  144 

Fiscus,  ii.  150,  i6i 

Foreign  relations,  i.  2 

Forensen  in  Prussia,  i.  321 

Frederick  William  I.,  influence  of,  on 
Prussian  local  administration,  i. 
295  ;  influence  of,  on  Prussian 
municipal  government,  i.  329 


3i6 


INDEX. 


Freedom  of  the  city,  i.  261 

|<'rench  administration,  decentraliza- 
tion of,  i.  154 

French  local  administration,  i.  266. 
{See  Local  administration  in  France.) 

French  revolution,  influence  of,  on 
French  local  administration,  i.  269 


Genteinde'xn  Prussia,  i.  318.  {See  Town 
officers  in  Prussia.) 

General  council  of  the  department  4n 
France,  i.  277  ;  administrative  con- 
trol over,  i.  280 ;  duties  of,  i.  278 

Generalities  in  France,  i.  268 

General  councillors  in  France,  how 
elected,  i.  277 

German  administration,  decentraliza- 
tion of,  i.  154 

German  chancellor,  i.  94.  {See  Chan- 
cellor of  German  Empire.) 

German  Emperor,  acts  of,  must  be 
countersigned  by  chancellor,  i.  95, 
96  ;  an  authority  of  enumerated 
powers,  i.  93  ;  power  of  appoint- 
ment of,  i.  93  ;  King  of  Prussia  is, 
i.  93  ;  power  of  direction  of,  i.  95  ; 
ordinance  power  of,  i.  95  ;  power 
of  removal  of,  i.  94  ;  irresponsible, 
i.  96 

German  prince,  acts  of,  to  be  counter- 
signed by  a  minister,  i.  92;  adminis- 
trative powers  of,  i.  91  ;  an  authority 
of  general  powers,  i.  89  ;  constitu- 
•U  limitations  on  power  of,  i.  90  ; 
incsponsible,  i.  89  ;  ordinance 
power  of,  i.  92  ;  power  of,  limited  by 
constitution,  i.  89 ;  power  of  ap- 
pointment' of,  i.  91  ;  power  of 
direction  of,  i.  92  ;  power  of  re- 
moval of,  i.  91  ;  remedies  against 
action  of,  i.  93  ;  responsibility  of 
ministers  for  acts  of,  i.  89,  91 ,  92 

German  local  administration,  i.  295. 
{See  Local  administration  inPrussia.) 


Gneist,  influence  of,  on  Prussian  local 
administration,  i.  300 

Government,  suits  by  or  against,  ii. 
150, 154  ;  a  juristic  person  in  United 
States,  ii.  149,  158 

"Government"  in  Prussia,  i.  305; 
duties  of,  i.  305  ;  effect  of  reform 
of  1872  oil  organization  and  com- 
petence of,  i.  366 ;  origin  of,  i. 
297 

"  Government"  president  in  Prussia, 
i.  305  ;  duties  of,  i.  306  ;  member 
of  higher  service,  ii.  49 

Governmental  action  of  the  adminis- 
tration, i.  10 ;  ii.  103 

Governmental  function  of  executive 
power,  i.  49 

Governor  in  Prussia,  i.  302  ;  appoints 
justices  of  the  peace,  i.  303  ;  chair- 
man of  provincial  council,  i.  304 ; 
controlled  by  provincial  council,  i. 
303.  304  J  duties  of,  i.  302  ;  opens 
provincial  diet,  i.  310 ;  is  repre- 
sentative of  ministers,  i,  302 

Governor  in  United  States,  adminis- 
trative powers  of,  i.  80  ;  appoints 
and  removes  civil-service  commis- 
sion, ii.  39  ;  colonial,  i.  53  ;  colon- 
ial, had  few  administrative  powers, 
i.  59  ;  colonial,  a  political  officer,  i. 
60  ;  of  commonwealth,  his  power  of 
appointment,  i.  76  ;  compared  with 
President,  i.  81  ;  control  of  courts 
over,  i.  82  ;  early  commonwealth, 
had  few  administrative  powers,  i. 
60  ;  early  commonwealth,  a  political 
officer,  i.  60  ;  power  of  direction  of, 
i.  79  ;  history  of,  i.  74  ;  may  de- 
clare state  of  insurrection,  ii.  123  ; 
his  powers  over  legislation,  i.  75  ; 
a  political  officer,  i.  74  ;  political 
powers  of,  i.  74  ;  power  of  removal 
of,  i.  78  ;  remedies  against  action 
of,  i.  82  ;  veto  power  of,  i.  75  ; 
common  law  writs,  will  not  issue  to, 
ii.  208 


INDEX. 


317 


Governor's  council  in  United  States, 

i.  102  * 

Grants  in  aid  in  England,  i.  263  ;  in 

Prussia,  i.  313 
Guardians,  poor-law  in   England,   i. 

248 

H 

Habeas  corpus,  purpose  of,  ii.  200. 
{^See  Writs,  common  law.) 

Hardenberg,  chancellor  of  Prussia,  i. 
298  ;  effect  of  death  of,  in  1822,  i. 
298  ;  influence  of,  on  Prussian  local 
administration,  i.  297 

Heads  of  departments,  i.  134;  agents 
of,  in  the  localities,  i.  159 ;  in 
American  commonwealths  indepen- 
dent of  governor,  i.  136  ;  appeals 
to,  i.  153,  157  ;  in  France  depen- 
dent upon  president  of  council 
of  ministers,  i.  139 ;  in  Germany, 
i.  139  ;  in  United  States,  i.  134 ; 
miscellaneous  powers  of,  i.  157  ; 
ordinance  power  of,  i.  156 ;  power 
of  appointment  of,  i.  146  ;  power 
of  direction  and  supervision  of,  i. 
150  ;  power  of  removal  of,  i.  149 ; 
remedies  against  the  action  of,  i. 
158  ;  term  and  tenure  of,  in  Eng- 
land, i.  142  ;  in  France,  i.  138  ;  in 
Germany,  i.  139 ;  in  United  States, 
i.  142  ;  in  United  States  national 
government  dependent  upon  Presi- 
dent, i.  136  ;  i.  127.  {See  Executive 
departments.) 

Hereditary  magistracy  in  Prussia, 
abolition  of,  i.  316,  319 

Higher  civil  service  in  England,  ii. 
52  ;  in  Germany,  ii.  49 

Higher  division  clerks  in  England,  ii. 

54 
Honorary  offices,  ii.  8 ;  acceptance  of, 
not  obligatory  in  France,  ii.  24 ; 
acceptance  of,  often  obligatory  in 
Germany,  ii.  24 ;  acceptance  of, 
obligatory  in  United  States,  ii.  23 


Impeachment,  ii.  296 

Imperial  court  at  Leipsic  in  Germany 

finally  decides  conflicts  of  jurisdic- 
tion, ii.  258 
Imperial  fortress  belt  commission  in 

Germany,  ii.  246 
Imperial  marine  office  in  Cjermany,  ii. 

247 
Imperial  patent  office  in  Germany,  ii. 

246 
Imperial  poor-law  board  in  Germany, 

ii.  245 
Imperial  railway  court  in  Germany, 

ii.  246 
Incompatible  offices,  ii.  95 
Ineligibility,  effect  of,  on  election,  ii. 

22 
Injunction,  not  issued  unless  case  can 

be  brought  under  regular  equitable 

jurisdiction,  ii.  209  ;    origin  of,  ii. 

194  ;    purpose   of,    ii.    200.      i^See 

Writs,  common  law.) 
Instructions  of  heads  of  departments, 

i.  152,  154,  157 
Insurrection,  state  of,  declaration  of, 

by  governor,  i.  75  ;  ii.  123 
Intellectual  capacity,  as  a  qualifica- 
tion for  office,  ii.  33,  47,  49,  53 
Intendants,  French,  i.  268 
Internal  affairs,  i.  3 
International  law,   aim    of,  ii.    137 ; 

distinguished     from   administrative 

law,  i.  15 
Intruders  into  office,  acts  of,  void,  ii. 

26 


Judges,  tenure  of,  on  the  continent, 
ii.  170,  197  ;  tenure  of,  in  England, 
ii.  193,  197  ;  tenure  of,  in  United 
States,  ii.  198 

Judgments  against  local  corporations, 
collection  of ,  ii.  153 

Judicial  affairs,  i.  3 


3i8 


INDEX. 


Judicial  authorities,  executive  func- 
tions of,  i.  2Q  ;  do  not  control  po- 
litical acts  of  executive,  i.  34; 
relation  of  administration  to,  i.  34. 
{^See  Courts.) 

Judicial  control,  ii.  142  ;  analysis  of, 
ii.  144  ;  kinds  of,  ii.  147.  {See  Con- 
trol over  administration.) 

Juristic  persons  vote  in  Prussia  in 
local  elections,  i.  322 

Justice,  administration  of,  not  a  local 
matter,  i.  204 

Justice  of  peace  in  England,  adminis- 
trative duties  of,  ii.  125  ;  in  cities,  i. 
196  ;  different  from  United  States,  i. 
170  ;  establishment  of,  i.  164  ;  inde- 
pendent position  of,  i.  236  ;  judicial 
duties  of,  ii.  124  ;  an  almost  purely 
judicial  officer,  i.  239 ;  ii.  126  ; 
present  position  of,  i.  239 

Justice  of  peace  in  Prussia,  appointed 
by  governor,  i.  303,  318  ;  formed  on 
model  of  English  justice  of  peace, 
i.  316  ;  duties  of,  i.  317 ;  service 
of,  obligatory  and  unpaid,  i.  316 

Justice  of  the  peace  in  United  States, 
early  colonies,  i.  166 ;  an  almost 
purely  judicial  officer,  ii.  126 


King  in  England,  i.  99.  {See  English 
Crown.) 

King  in  Prussia,  appoints  the  profes- 
sional members  of  the  district  com- 
mittee, i.  307  ;  appoints  members 
of  "  governments,"  i  .305  ;  appoints 
and  dismisses  governor,  i.  302  ;  ap- 
points landrath,  i.  315  ;  appoints 
and  dismisses  Oberprdsident,  i.  302  ; 
approves  by-laws  of  provinces,  i. 
311  ;  calls  provincial  diets  every  two 
years,  i.  310  ;  may  dissolve  provin- 
cial diets,  i.  314 

King's  bench,  court  of,  ii.  193 

Kreis  in  Prussia,  i.  314.  {See  Circle 
in  Prussia.) 


Kreisausschuss    in    Prussia,    i.    315. 

{See  Circle  committee.) 
Kreistag  in  Prussia,  i.  320.  {See  Circle 

diet  in  Prussia.) 


Laborers  not  affected  by  civil-service 
rules  in  United  States,  ii.  36,  39 

Landrath  in  Prussia,  i.  315  ;  approves 
choice  of  mayors  and  Schoffen,  i. 
319  ;  duties  of,  i.  315 

Legislative  acts  of  executive,  i.  28,  35. 
{See  Ordinances.) 

Legislative  control,  power  of  legisla- 
ture to  remedy  special  administra- 
tive abuses,  ii.  266  ;  examination  of 
accounts,  ii.  291  ;  over  expenses,  ii. 
279  ;  over  finances,  ii.  275  ;  history 
of,  ii.  262  ;  impeachment,  ii.  296  ; 
power  of  legislature  in  Germany 
and  United  States  to  investigate 
the  action  of  administration,  ii.  267  ; 
over  localities  in  France,  i.  279  ; 
power  to  remedy  special  administra- 
tive abuses  in  England  and  France, 
ii.  271 

Legislative  functions  of,  executive,!.  26 

Legislative  interference  in  municipal 
affairs  in  the  United  States,  i.  21 

Legislature,  controls  the  administra- 
tion, i.  33  ;  executive  functions  of,  i. 

25 

Legislature,  the  regulator  of  the  ad- 
ministration, i.  31  ;  may  provide 
qualifications  for  office,  ii.  27.  {See 
Legislative  control.) 

Licences,  ii.  112 

Liens,  ii.  121 

Local  administration,  continental 
method  of,  i.  266,  290  ;  European 
method  of,  i.  266 

Local  administration  in  England, 
audit  of  accounts,  i.  260  ;  boards  of 
guardians,  powers  of,  i.  249  ;  bor- 
ough council,   powers  of,    i.    256 ; 


INDEX. 


319 


central  administrative  control,  i. 
259  ;  power  of  central  authorities  to 
compel  local  action,  i.  261  ;  chaos 
in,  i.  246  ;  disciplinary  powers  of 
central  authorities  over,  i.  262 ; 
grants  in  aid  of,  i.  250,  263  ;  de- 
fects of  justice  of  the  peace  system, 
i-  235  ;  general  characteristics  of,  i. 
263  ;  history  of,  to  i8th  century,  i. 
162  ;  history  of,  from  17th  century, 
i.  234  ;  local  government  district, 
i.  258  ;  local  loans,  approval  of,  i. 
260 ;  mayor,  i.  255  ;  municipal  al- 
dermen, i.  255  ;  municipal  borough, 
i.  253  ;  municipal  departments,  i. 
257  ;  municipal  elections,  i.  255  ; 
municipal  suffrage,  i.  255  ;  number 
of  authorities  for,  i.  248  ;  the  par- 
ish, i.  250  :  parish  elections,  i.  251 ; 
reforms  of  1834  and  1835,  i.  236  ; 
sanitary  authorities  in  England,  i. 
249,  257  ;  the  union,  i.  248  ;  union 
elections,  i.  249 

Local  administration  in  France,  i. 
268  ;  the  arrondissement,  i.  283  ; 
central  administrative  control  over, 
i.  292  ;  centralization  of,  under 
absolute  monarchy,  i.  268  ;  the 
commune,  i.  285 ;  council  of 
the  prefecture,  i,  274  ;  decen- 
tralization of,  since  time  of  Na- 
poleon, i.  271  ;  the  department, 
i.  272 ;  departmental  commission, 
i.  275  ;  the  district,  i.  283  ;  general 
characteristics  of,  i.  292  ;  general 
council  of  the  department,  i.  277  ; 
general  grants  of  local  power,  i. 
292  ;  influence  on,  of  French  revo- 
lution, i.  269  ;  influence  of  Napoleon 
on,  i.  271  ;  mayor,  i.  287  ;  Napo- 
leonic legislation  regarding,  i.  271  ; 
professional  character  of  ofl5cers,  i. 
294 ;  the  prefect,  i.  272 ;  under- 
prefect,  i.  283 

Local  administration  in  Prussia,  i. 
295  ;  influence  of  Bismarck  on,  i. 


300  ;  circle,  i.  314 ;  circle  commit- 
tee, i.  315;  circle  diet,  i.  320^  cities, 
i.  328  ;  city  council,  i.  331 ;  city 
departments,  i.  334  ;  city  executive, 
i.  332  ;  the  district  committee,  i. 
307  ;  central  administrative  control 
over,  i.  314,  336  ;  conservative  re- 
action of  1822-1860,  i.  298  ;  effect 
of  revolution  of  1848  on,  i.  298  ; 
influence  of  Gneist  on,  i.  300  ;  his- 
tory of,  i.  295  ;  influence  on,  of 
Frederick  William  I.,  i.  295  ;  the 
governor,  i.  302  ;  '  *  government " 
board,  i.  297,  305  ;  influence  on,  of 
Hardenberg,  i.  297  ;  judicial  con- 
trol over,  i.  337 ;  justice  of  the 
peace,  i.  316 ;  Landrath,  i.  315  ; 
formation  of  local  legislatures  in 
1822,  i.  298  ;  the  Oberprasident,  i. 
302  ;  obligatory  unpaid  service  as 
officer,  i.  337  ;  the  province,  i.  301  ; 
provincial  committee,  i.  311  ;  pro- 
vincial council,  i.  303  ;  provincial 
diet,  i.  308  ;  provincial  director,  i. 
312 ;  reform  of  1872  in,  i.  299 ; 
rural  circles,  i.  321  ;  influence  on, 
of  Baron  Stein,  i.  296  ;  town  offi- 
cers, i.  318  ;  urban  circles,  i.  321 
Local  administration  in  United  States, 
the  compromise  system,  i.  178;  city, 
i.  99  et  seq.  j  city  council,  i.  213 ; 
city  officers,  i.  210,  217 ;  constitu- 
tional provisions  protecting  powers 
of  localities,  i.  227  ;  county,  i.  166, 
178, 185, 189  ;  county  commissioner, 
i.  168,  180,  185,  190;  county  offi- 
cers, i.  178,  185,  190;  decentralized 
character  of,  i.  230 ;  differences  in 
powers  of  localities,  i.  227  ;  elective 
principle,  origin  of,  i.  167  ;  freedom 
of  authorities  from  central  adminis- 
trative control,  i.  228  ;  general 
characteristics  of,  i.  223 ;  great 
number  of  authorities,  i.  228 ;  jus- 
tice of  peace,  i.  166,  170  ;  localities, 
agents    of    central    commonwealth 


320 


INDEX. 


government,  i.  228  ;  mayor,  i.  207; 
early,  in  middle  American  colonies, 
i.  165  ;  in  New  England,  i.  165, 
185  ;  non-professional  character  of, 
i.  231  ;  original  form  of,  i.  165  ; 
power  of  localities  to  elect  officers 
guaranteed  by  constitution,  i.  225  ; 
early,  in  southern  colonies,  i.  165  ; 
in  the  south,  i.  189  ;  school  district, 
i.  185,  189,  190 ;  sheriff,  i.  166  ; 
statutory  enumeration  of  powers  of 
localities,  i.  223  ;  supervisor,  i.  167, 
179,  183  ;  town,  i.  183,  188  ;  town 
meeting,  i.  183,  188  ;  town  officers, 
i.  183,  188  ;  village,  i.  220 
Local  corporations,  suits  against,  ii. 

152 

Localities,  collection  of  judgments 
against,  ii.  153  ;  on  continent  of 
Europe,  authorities  of  general 
powers,  i.  43  ;  by  English  and 
American  law,  bodies  of  enumer- 
ated powers,  i.  41  ;  in  England  and 
the  United  States  not  corporations, 
i.  172  ;  participation  of,  in  admin- 
istration, i.  38 ;  suits  against,  ii. 
152 

Localities  in  United  States,  i.  174. 
{See  Counties,  Towns,  Cities,  and 
Local  administration.) 

Local  government,  administrative  con- 
trol over,  i.  45  ;  continental  method 
of,  i.  43  ;  English  method  of,  i.  41; 
legislative  control  over,  i.  43 ;  sphere 
of,  i.  39.  {^See  Local  administration.) 

Local  government  act  of  1888,  Eng- 
lish, i.  238,  241 

Local  government  board  in  England, 
powers  of,  over  localities,  i.  262,  264 

Local  government  district  in  England, 
i.  258 

Local  offices,  qualifications  for,  ii.  28 

Local  police  power,  ii.  iii 

Local  powers  in  Europe,  general  grant 
of,  i.  266 

Local  powers  in  United  States,  cen- 


tralization of,  in  legislature,  i.  224  ; 

statutory  enumeration  of,  i.  223 
Local  suffrage,   in  England,   i.   241, 

249,  251,  254  ;   in  France,  i.  277, 

289  ;  in  Germany,  i.  321  ;  in  United 

States,  i.  178,  217,  221 
Locke,  his  theory  of  the  separation  of 

powers,  i.  20 
London,  i.  265 
Lord  Palmerston,  struggle  with  Lord 

John  Russell,  i.  143 
Lower  division,  clerks  of,  in  England, 

ii.  55 
Lyons,  i  293 

M 

Magisterial  district,  i.  191 

Mandamus^  to  enforce  claim  for  offi- 
cial pension  in  England,  ii.  76  ;  to 
force  delivery  of  insignia  of  office, 
etc.^  ii.  63  ;  to  force  payment  of 
salary  of  officers,  ii.  73  ;  origin  of, 
ii.  194  ;  power  of  federal  courts  to 
issue,  ii.  211  ;  purpose  of,  ii.  200. 
i^See  Writs,  common  law.) 

Manor  in  Prussia,  i.  319 

Matricular  contributions  in  Germany, 
i.  119 ;  ii.  277,  288 

May,  when  construed  as  meaning 
must,  ii.  77 

Mayor  in  France,  i.  287  ;  became 
elective  in  1882,  i.  286  ;  duties  of, 
i.  288  ;  elected  by  municipal  coun- 
cil, i.  287 ;  term  of,  i.  287 

Mayor  in  Prussia,  i.  333  ;  elected  by 
town  meeting,  i.  319.  {See  Burgo- 
master in  Prussia.) 

Mayor  in  United  States,  duties  of,  i. 
208  ;  elected  by  people,  i.  207  ; 
origin  of  present  position  of,  i.  207  ; 
power  of  appointment  of,  i.  210 ; 
power  of  removal  of,  i.  211  ;  origi- 
nally elected  by  city  council,  i.  207; 
powers  of,  increasing  of  late,  i. 
208,  210 ;  term  of  office  of,  i.  207  ; 
veto  power  of,  i.  212 


INDEX. 


321 


Mayor's  courts  in  United  States,  i. 
205 

Military  affairs,  i.  2 

Ministerial  responsibility,  in  England, 
i.  loi  ;  ii.  272,  297  ;  in  France,  i. 
138  ;  ii.  271  ;  in  Germany,  i,  140 

Ministers,  i.  1,27,  134  ;  irresponsi- 
bility of,  in  England  and  United 
States,  ii.  164.  {See  Executiye  de- 
partments.) 

Ministers  inEngland.must  obey  prime- 
minister,  i.  143  ;  responsible  to 
Parliament  for  acts  of  Crown,  i.  loi 

Ministers  in  France,  must  obey  presi- 
dent of  council  of  ministers,  i.  138  ; 
responsible  for  acts  of  the  President, 
i.  88 

Ministers,  in  Germany,  responsible 
for  acts  of  prince,  i.  92,  140 ;  not 
responsible  to  Parliament,  i.  140  ; 
in  Empire,  appointed  and  dismissed 
on  recommendation  of  the  chan- 
cellor, i.  140 ;  in  Empire,  must 
obey  directions  of  the  chancellor,  i. 
140  ;  in  Empire,  secretaries  of 
chancellor,  i.  140 

Minister-president  in  Germany,  i.  141 

Minority  representation  in  England, 
i.  252,  257 

Montesquieu,  his  theory  of  the  separa- 
tion of  powers,  i.  20 

Municipal  borough  in  England,  i. 
193.  253.  {See  Local  adminis- 
tration in  England  and  City  in 
England.) 

Municipal  charters  in  England,  i.  197 

Municipal  citizenship,  original,  in 
England,  i.  194  ;  in  Germany,  1. 
331  ;  in  United  States,  i.  217 

Municipal  corporations,  responsibility 
of,  for  exercise  of  private  powers, 
ii.  152.     (.S,?^  City.) 

Municipal  corporations  act  of  1835, 
English,  i,  238  ;  of  1882,  English, 
i.  254 

Municipal  council  in  England,  duties 


of,  i.  256  ;  oi^anization  of,  i.  254 ; 
origin  of,  i.  195 

-Municipal  council  in  France,  duties 
of,  i.  290 ;  elects  mayor  and  depu- 
ties, i.  287 ;  organization  of,  i.  289  ; 
sessions  of,  i.  290  ;  term  of  office, 
i.  290 

Municipal  council  in  Germany,  duties 
of,  i.  332  ;  organization  of,  i.  331 

Municipal  council  in  United  States, 
decrease  of  powers  of,  i.  213  ;  finan- 
cial powers  of,  i.  214  ;  form  of,  i. 
2i6  ;  police  powers  of,  i.  214  ;  quali- 
fications for,  i.  217 

Municipal  departments  in  United 
States,  i.  210  ;  heads  of,  in  United 
States  originally  appointed  by  city 
council,  i.  209  ;  heads  of,  elected  by 
people,  i.  209  ;  organized  often  by 
the  commonwealth  legislature,  i. 
209  ;  terms  of  heads  of,  i.  212 

Municipal  government  in  United 
States,  i.  216 

Municipal  officers  in  United  States 
entrusted  with  discharge  of  general 
functions,  i.  204 ;  power  of  gov- 
ernor to  appoint,  i.  225 

Municipalities,  subject  to  control  of 
legislature,  i.  205  {see  Cities)  ;  in 
England,  i.  253 

N 

Napoleon,  legislation  of,  in  France 
as  to  communes,  i.  286  ;  his  system 
of  local  administration,  i.  271 

National  administration  in  United 
States,  has  become  more  central- 
ized, i.  151 

Necessity  of  control  over  the  adminis- 
tration, ii.  135 

Nolle  prosequi  not  a  bar  to  indict- 
ment, ii.  181,  183  ;  who  may  enter 
in  England,  ii.  181  ;  who  may 
enter  in  United  States,  ii.  183 

Noraian  absolutism,  i.  162 

Norman  administration,  i.  162 


VOL.  II. — 21 


322 


INDEX. 


Obedience  to  orders  by  officers,  ii. 
82 

Oberprdsident  in  Prussia,  i.  302.  (^See 
Governor  in  Prussia.) 

Obligatory  service  as  officer  in  Prus- 
•  sia,  i.  327,  332,  337  ;  in  United 
States,  i.  232 

Octroi  taxes  in  France,  i.  291 

Office,  abandonment  of,  ii.  97  ;  may 
be  abolished  by  legislative  action, 
ii.  100 ;  acceptance  of,  in  United 
States,  ii.  23  ;  appointment  to,  ii. 
14 ;  board  system  of,  ii.  6  ;  not  a 
contract,  ii.  368  ;  de  facto ^  do  not 
exist,  ii.  25  ;  definition  of,  ii.  i  ; 
not  determined  by  duties  of  posi- 
tion, ii.  3  ;  distinguished  from  em- 
ployment, ii.  2  ;  how  filled,  ii.  14  ; 
forbidden,  ii.  96  ;  incompatible,  ii. 
95  ;  mandamus  to  obtain  possession 
of,  ii.  63  ;  methods  of  organizing, 
ii.  6 ;  method  of  organizing  in 
France,  ii.  7  ;  qualifications  for, 
ii.  27 ;  qualifications  for,  ii.  27 ; 
removal  from,  ii.  97  ;  right  of  officer 
to,  ii.  62  ;  single-headed  system  in, 
ii.  6  ;  term  of,  ii.  89  ;  trial  of  title 
to,  ii.  62. 

Officers,  acts  of,  may  not  be  im- 
peached collaterally,  ii,  26  ;  bonds 
of,  ii.  81  ;  crimes  of,  ii.  79  ;  de  facto  ^ 
ii.  25  ;  definition  of,  ii.  i  ;  devotion 
of  entire  time  to  official  duties,  ii. 
83  ;  duties  of,  ii.  77  ;  duty  of  good 
conduct,  ii.  84 ;  honorary,  ii.  8  ; 
law  of,  ii.  I ;  ministerial,  not  respon- 
sible when  obeying  instructions  in 
United  States,  ii.  166  ;  moral  duties, 
of,  ii.  82  ;  obedience  to  orders,  ii. 
82  ;  offensive  partisanship  of,  ii,  85  ; 
pensions  of,  ii.  74  ;  per  diem  allow- 
ances of,  in  United  States,  ii.  71  ; 
power  of  criminal  courts  to  punish, 
for  crimes,  ii.  179  ;  professional,  ii. 


8  ;  prosecution  of,  for  crimes,  in 
England,  ii.  180:  prosecution  of, 
for  crimes,  in  France,  ii.  186;  prose- 
cution of,  for  crimes,  in  Germany, 
ii.  188  ;  prosecution  of,  for  crimes, 
in  United  States,  ii.  181  ;  resigna- 
tion of,  ii.  92  ;  responsibility  of, 
for  violation  of  duty,  ii.  86  ;  respon- 
sibility of,  when  obeying  orders,  ii. 
83,  166  ;  responsibility  of,  for  negli- 
gence in  United  States  and  England, 
ii.  167  ;  rights  of,  ii.  62  ;  right  to 
compensation,  ii.  68  ;  right  to  pro- 
motion, ii.  66  ;  right  to  office,  ii. 
62  ;  right  to  special  protection,  ii 
64  ;  may  sue  for  salary,  ii.  72  ; 
suits  against,  for  damages,  in 
England  and  United  States,  ii. 
163  ;  in  France,  ii.  172  ;  in  Ger- 
many, ii.  176;  suits  against,  in 
Roman  law,  ii.  169  ;  who  are,  in 
United  States  federal  administra- 
tion, ii.  4 

Official  duties,  violation  of,  criminally 
punishable,  i.  231 

Official  relation,  termination  of,  ii.  89 

Orders  in  council,  i.  124 

Orders  of  administration,  i.  35  ;  ii. 
112 

Ordinances  in  general,  i.  28  ;  ad- 
ministrative, ii.  no ;  difference 
between  them  and  ministerial  in- 
structions, i.  57  ;  on  continent  of 
Europe,  ii.  in  ;  in  England,  i.  124 ; 
in  France,  i.  85  ;  in  United  States, 
i.  72,  80 

Ordinance  power,  delegated,  i.  29  ;  of 
English  Crown,  i.  loi  ;  of  exec- 
utive, i.  28  ;  of  Federal  Council 
in  Germany,  i.  118  ;  of  French 
prefect,  i.  273  ;  of  French  Presi- 
dent, i.  85  ;  of  German  prince,  i. 
92  ;  of  heads  of  departments,  i. 
151  ;  independent,  i.  28;  of  Presi- 
dent of  United  States,  i.  72  ;  supple- 
mentary, i.  28 


INDEX, 


323 


Ordinary,  administrative  functions  of 

in  Georgia,  i.  191 
Overseers  of  the  poor,  in  England,  i. 

251 


Paris,  i.  293 

Parish  in  England,  i.  250  ;  origin  of, 
i.  164 

Parliamentary  responsibility  of  minis- 
ters in  England,  i.  144 

Pass  examinations  in  Germany,  ii.  51 ; 
in    United    States,    ii.    41  ; 

Pays  d'e'tats  in  France,  i.  269 

Penalties,  imposition  of  by  adminis- 
tration, ii.  120 

Pensions,  official,  ii.  74 

Per  diem  allowances  of  officers  in 
United  States,  i.  231  ;  ii.  71 

Permissive  acts,  in  England,  i.  251  ; 
when  peremptory,  ii.  78 

Permanent  annual  appropriations  in 
United  States,  ii.  284 

Permanent  civil  service,  in  England, 
ii.  53  ;  in  United  States,  ii.  36 

Petition  of  right,  ii.  154 

Physical  capacity  as  a  qualification  for 
office,  ii.  33 

Physical  force,  application  of,  by  the 
administration,  ii.  122 

Police,  not  a  local  matter,  i.  204 

Police  courts,  power  of,  to  control 
administration,  ii.  178 

Police  power,  local,  ii.  in;  of  French 
mayor,  i.  288  ;  of  French  prefect, 
i.  273  ;  of  Prussian  governor,  i.  303 

Police  ordinances,  central  approval 
of  local,  ii.  112 

Political  acts  of  executive,  i.  54 

Political  civil  service  in  England,  ii. 
52  ;  in  United  States,  ii.  36 

Political  function  of  executive  power, 
i.  49 

Political  qualifications  for  office  un- 
constitutional, ii.  27 


Poor-law  amendment  act  of  1834, 
English,  i.  237 

Poor-law  union  in  England,  i.  248 

Popular  sovereignty,  influence  of 
theory  of,  on  office  of  governor,  i. 
56,  57,  59 

Posse  comitatus,  ii.  123 

Power  of  removal,  ii.  97  ;  in  Ger- 
many, ii.  100 ;  in  United  States, 
does  not  include  power  to  suspend, 
ii.  100 

Precepts,  i.  36 

Prefect  in  France,  how  appointed,  i. 
272  ;  is  to  approve  certain  resolu- 
tions of  municipal  council,  i.  290 ; 
control  of,  over  mayor,  i.  287,  289 ; 
duties  of,  i.  273  ;  **  raises  the  con- 
flict," ii.  259 

Premier  in  England,  i.  143 

Prerogative  writs,  origin  of,  ii.  195 

Preservation  of  the  peace  not  a  local 
matter,  i.  204 

President  of  council  of  ministers,  in 
France  at  the  head  of  the  adminis- 
tration, i.  139  ;  in  Germany,  i.  141 

President  of  France,  administrative 
powers  of,  i.  83  ;  power  of  appoint- 
ment of,  i.  83, 109  ;  general  position 
of,  i.  83  ;  power  of  direction  of,  i. 
84  ;  appoints  and  dismisses  prefects 
and  under-prefects,  i.  272,  284 ;  is 
to  approve  budget  of  general  coun- 
cils of  the  departments,  i.  280 ;  may 
dissolve  general  councils  of  the  de- 
partments, i.  277  ;  may  veto  certain 
resolutions  of  general  councils  of 
departments,  i.  280  ;  may  call  extra 
sessions  of  general  councils  of  de- 
partments, i.  278  ;  ordinance  power 
of,  i.  85  ;  power  of  removal  of,  i. 
84  ;  may  remove  mayors,  i.  287  ; 
remedies  against  his  action,  i.  87  ; 
responsibility  of,  i.  85 

President  of  United  States,  adminis- 
trative powers  of,  i.  72  ;  appeals  to, 
i.  73  ;  appoints  and  removes  civil- 


324 


INDEX. 


service  commission,  ii.  39  ;  common 
law  writs  will  not  issue  to,  ii.  208  ; 
power  of  direction  of,  i.  66 ;  duty 
to  execute  the  laws,  i.  72  ;  com- 
pared with  governor  of  common- 
wealth, i.  81;  history  of  office,  i.  62; 
irresponsibility  of,  ii.  164  ;  may  call 
out  military  forces,  ii.  123  ;  may 
order  nolle  prosequi  to  be  entered, 
ii.  186  ;  ordinance  power  of,  i.  72  ; 
original  position  of,  i.  62  ;  powers 
of,  i.  62,  71  ;  effect  on  office  of  the 
power  of  removal,  i.  64 ;  power  of 
removal  of,  i.  64  ;  present  position 
of,  i.  69  ;  remedies  against  action 
of,  i.  73  ;  responsibility  of,  i.  73 
Prime-minister  in  England,  i.  143 
Private  law,  aim  of,  ii.  137  ;  distin- 
guished from  administrative  law,  i. 

14 

Privilegium  de  nan  appellando  in  Ger- 
many, ii.  170,  240 

Privy  Council  in  England,  appeals  to, 
ii.  195  ;  committees  of,  i.  125  ; 
controlled  by  cabinet,  i.  143  ;  func- 
tions of,  i.  124  ;  history  of,  122  ; 
organization  of,  i.  123  ;  original 
composition  of,  i.  123  ;  original 
functions  of,  i.  122  ;  sessions  of, 
i.  124 ;  members  of,  may  alone 
advise  Crown,  i.  109,  125  ;  quorum 
of,  i.  124 

Probation,  in  German  civil  service,  ii. 
50  ;  in  United  States,  ii.  44 

Procedure  of  administration,  ii.  115 

Professional  offices,  ii.  8  ;  acceptance 
of,  not  obligatory,  ii.  23 

Professional  officers  in  France,  ineli- 
gible for  local  offices,  i.  277  ;  in 
French  local  administration,  i.  294 

Prohibition,  power  of  federal  courts  to 
issue,  ii.  212  ;  purpose  of,  ii.  200. 
{See  Writs,  common  law.) 

Promotion  of  officers,  ii.  66 

Promotion  of  public  welfare  by  ad- 
ministration, ii.  104,  136 


Property  qualifications,  see  Qualifica- 
tions for  office 

Province  in  Prussia,  i.  301  ;  revenue 
of,  i.  313.  {See  Local  administra- 
tion in  Prussia.) 

Provincial  assemblies  in  France,  at- 
tempt to  introduce  under  Louis 
XVI.,  i.  269 

Provincial  committee  in  Prussia,  i.  311 ; 
appoints  lay  members  of  the  district 
committee,  i.  307  ;  duties  of,  i.  312 ; 
elected  by  provincial  diet,  i.  311  ; 
duties  of,  i.  314 

Provincial  diet  in  Prussia,  duties  of, 
i.  310  ;  elects  provincial  committee, 
i.  311  ;  elects  lay  members  of  pro- 
vincial council,  i.  304  ;  elects  pro- 
vincial officers,  i.  311  ;  organization 
of,  i.  309 

Provincial  officers  in  Prussia  receive 
no  pay,  i.  312 

Provinzialaussehuss  in 'Prvissi&f  i.  311. 
(See  Provincial  committee  in  Prus- 
sia.) 

Provinziallandtag  in  Prussia,  i.  308. 
{^See  Provincial  diet  in  Prussia.) 

Provinzialrath  in   Prussia,    i.    303. 

Prosecution  of  officers,  private  prose- 
cution, ii.  180 ;  public  prosecution 
of,  ii.  186 

Public  business,  distinguished  from 
private  business,  i.  10 

Public  ends,  i.  38 


Qualifications  for  appointed  officers, 
ii.  29 

Qualifications  for  appointed  officers 
in  United  States,  age,  ii.  29;  citizen- 
ship, ii.  30 ;  intellectual  capacity, 
ii.  33  ;  loss  of,  ii.  95  ;  political  un- 
constitutional, ii.  27  ;  religious  un- 
constitutional, ii.  27  ;  residence,  ii. 
29  ;  time  when  they  must  exist,  ii.  29 


INDEX. 


325 


Qualifications  for  office  in  England, 
ii.  52  ;  in  France,  ii.  46 ;  in  (Jer- 
many,  i.  48  ;  property,  i.  2i8,  ii. 
29 

Qualifications  for  local  officers  in 
Prussia,  i.  310 

Quarter  sessions,  court  of,  in  England, 
appeals  to,  ii.  196,  214 

Quasi  corporations,  distinguished 
from  municipal  corporations  pro- 
per, i.  202,  ii.  152.  {^See  Towns 
and  Counties.) 

Quo  warranto^  against  cities  in  Eng- 
land, i.  197  ;  not  used  to  try  title  to 
offices  of  uncertain  term,  ii.  62,  note; 
not  used  when  special  tribunals 
have  been  formed  to  try  title  to 
office,  ii.  63  ;  power  of  federal 
courts  to  issue,  ii.  212.  {See  Writs, 
common  law.) 


Receipts  of  government,  when  fixed 
by  permanent  law,  ii.  275 

Recorder  of  New  York  City,  L  207 

Recorder's  courts,  i.  205 

Refer endnrius  in  German  civil  ser- 
vice, ii.  50 

Reform  bill  of  1832  in  England,  i. 

235 

Regierung  in  Prussia,  i.  305.  {See 
*'  Government "  in  Prussia.) 

Regierungsprdsident  in  Prussia,  i.  305. 
{See  *' Government"  president  in 
Prussia.) 

Registration  of  papers  by  the  admin- 
istration, ii.  131 

Registration  of  voters  acts,  ii.  18 

Religious  qualifications  for  office  un- 
constitutional, ii.  27 

Removal  from  office,  ii.  97 

Representation  in  Prussia  based  on 
property,  i.  320 

Residence  as  a  qualification  for  office 
in  United  States,  ii.  28,  30 


Resignation  of  officers,  ii.  92 

Revolution  of  1848  in  Prussia,  ef- 
fect of,  on  local  administration,  i, 
298 

Richelieu,  influence  of  on  French  local 
administration,  i.  268 

Rights  of  officers,  ii.  62.  {See  Officers.) 

'*  Rings,"  ii.  17 

Rotation  in  office  in  United  States,  ii. 

91 
Russell,   Lord   John,    struggle    with 
Lord  Palmerston,  i.  143 


Salaries  of  officers,  ii.  68  ;  may  not  be 
assigned,  ii.  71  ;  not  based  on  con- 
tract but  on  statute,  ii.  68  ;  not  di- 
minished nor  lost  by  sickness  or  in- 
ability to  do  work,  ii.  70;  how 
fixed,  ii.  69  ;  how  fixed  in  amount, 
ii.  70 ;  not  subject  to  garnishment, 
ii.  71 ;  how  pajrment  of  is  enforced, 
ii.  72  ;  may  be  reduced  during  term, 
ii.  69 

Sanction  of  local  police  ordinances,  ii. 
Ill 

Sanitary  districts  in  England,  i.  249, 
258 

Schoffen  in  Prussia,  i.  319 

School  attendance  committee  in  Eng- 
land, i.  251 

School  districts  in  England,  i.  252, 
254,  257 ;  in  United  States,  i.  185, 
189,  190 

Secrecy  of  ballot,  ii.  21 

Secretariat  of  State,  English,  i.  129 

Secretary  of  Treasury  in  United 
States,  power  of,  over  collectors  of 
customs,  i.  153 

Selectmen,  i.  170,  188 

Select  vestry  in  England,  i.  251 

Self-government  system  of  administra- 
tion, ii.  8  et.  seq. 

Self-government,  the  administrative 
system  of  the  United  States,  ii,  9 


326 


INDEX. 


Senate,  United  States,  control  of  com- 
monwealth over  administrative  acts 
of  governor,  i.  104;  control  over 
administrative  powers  of  President, 
i.  103  ;  control  over  political  acts 
of  President,  i.  103  ;  an  executive 
council,  i.  102,  104 ;  federal  and 
commonwealth  compared,  i.  105 ; 
sessions  of,  i.  103 

Senate  appointments  not  affected  by 
civil-service  rules  in  the  United 
States,  ii.  36,  39 

Separation  of  powers,  the  theory  of, 
i.  19  ;  exceptions  to  the  theory  of, 
i.  25  ;  influence  of  theory  on  United 
States  executive,  i.  56,  57,  59;  theory 
of,  discarded  by  modern  political 
science,  i.  20  ;  theory  of,  a  part  of 
American  law,  i.  24  ;  theory  of, 
stated,  i.  22 ;  theory  of,  not  the 
same  in  different  countries,  i.  21, 
24 

Septennate  in  Germany,  ii.  289 

Sex,  as  a  qualification  for  office,  ii. 
28,  32 

Sheriff,  i.  162 ;  in  North  Carolina 
and  Tennessee,  i.  190 ;  in  United 
States,  i.  166 ;  may  call  out  posse 
comiiatus,  ii.  123 

Soldiers  and  sailors,  honorably  dis- 
charged, preferred  in  appointment 
to  office,  ii.  31,  44,  52 

Special  and  local  legislation  in  France, 
i.  112 

Special  protection,  right  of  officers  to, 
ii.  64 

Stadtausschuss  in  Prussia,  i.  315.  {See 
City  committee  in  Prussia.) 

Staff  appointments  in  English  civil 
service,  ii.  53 

Star  chamber,  ii.  195  ;  abolition  of, 
i.  123 

State,  ends  of,  i.  38  ;  suits  by  or 
against,  ii.  149,  154 

State  governor,  i.  80.  (^^  Governor 
in  United  States.) 


State  ministry  in  Germany,  i.  14 

State  officers.  {See  Heads  of  depart- 
ments.) 

State  secrets,  revealing  of,  by  ofiScers, 
treason,  ii.  82 

Statistics,  ii.  133 

Statutes,  conditional,  ii.  109  ;  direc- 
tory in  form,  when  mandatory,  ii. 
77  ;  penal,  i.  16 ;  ii.  106  ;  uncon- 
ditional, ii.  106 

Statutory  enumeration  of  local  powen 
in  United  States,  i.  223 

Stein,  Baron,  influence  of,  on  Prussian 
local  administration,  i.  296  ;  influ- 
ence of,  on  Prussian  municipal  gov^ 
emment,  i.  328  ;  "  political  testa* 
ment "  of,  i.  296  note 

Subaltern  service  in  German  civil  ser, 
vice,  ii.  51 

Suffrage,  municipal,  in  England,  i. 
254 ;  municipal,  in  France,  i. 
289  ;  municipal,  in  Prussia,  i.  331 ; 
municipal,  in  United  States,  i, 
217 

Suits  by  or  against  the  government, 
ii.  149,  154 

Superannuation  allowances  of  offi- 
cers, ii.  74 

Supervisor  in  United  States,  origin  o(, 
i.  167  ;  powers,  of  i.  180,  183 


Taxes,  collected  by  summary  proce- 
dure, ii.  126 

Taxing  power  of  cities  in  United 
States,  i.  201 

Technical  administrative  service  in 
Prussia,  ii.  49 

Tenure  of  office  acts  in  United 
States,  i.  65 ;  effect  of  repeal  of, 
on  power  of  United  States  Senate, 
i.  103 

Term  of  office,  expiration  of,  ii.  89 

Term  of  office  acts  in  United  States, 
ii.  90 


INDEX. 


327 


Term  of  probation  in  civil  service,  in 
England,  ii.  55;  in  France,  ii.  48  ; 
in  Germany,  ii.  50,  52  ;  in  United 
States,  ii.  44 

Territorial  distribution  of  administra- 
tive functions,  i.  38 

Title  to  office,  trial  of,  ii.  62 

Torts,  responsibility  of  government 
for,  ii.  159  ;  in  continental  Europe, 
ii.  161  ;  in  England  and  United 
States,  ii.  155,  157 

Torts  of  local  corporations,  ii.  152 

Town  in  the  United  States,  town 
board,  i.  184  ;  not  originally  a  cor- 
poration, i.  171  ;  an  agent  of  cen- 
tral government,  i.  173  ;  corporate 
capacity  of,  i.  173  ;  is  a  corporation, 
i.  172  ;  different  from  English 
parish,  i.  170  ;  in  New  England,  i. 
188  ;  in  New  York,  i.  170,  183  ;  in 
northwest,  i.  183  ;  number  of  offi- 
cers of,  i.  170  ;  officers  of,  in  com- 
promise system,  i.  184  ;  officers  of, 
elected,  i.  185  ;  officers  of,  elected 
from  beginning,  i.  170  ;  origin  of,  i. 
169  ;  in  Pennsylvania,  i.  171  ;  has 
no  sphere  of  independent  action,  i. 
176  ;  in  the  south,  i.  192  ;  super- 
visor of,  i.  183  ;  trustee  of,  i.  184 

Town  meeting,  in  Prussia,  i.  318  ;  in 
United  States,  i.  183,  188 

Town  officers  in  Prussia,  i.  318 

Township,  see  Town. 

Tribunal  of  conflicts  in  France,  ii.  258 

Turgot,  reforms  of,  ii.  218 


U 


Unpaid    official    service    in    United 

States,  i.  232  ;  ii.  69 
Urban  circles  in  Prussia,  i.  321 


Vestry  in  England,  i.  251 

Veto  power,  i.  27.  {^See  President  of 
United  States  and  Governor.) 

Vice-comes y  i.  163 

Village  in  United  States,  i.  218  ;  board 
of  trustees  of,  i.  220  ;  distinction  of, 
from  city,  i.  219  ;  general  position 
of,  i.  218  ;  a  full  municipal  cor- 
poration, i.  219  ;  officers  of,  i.  220 ; 
organization  of,  i.  220  ;  suffrage  in, 
i.  221 

Voters,  qualifications  of,  in  United 
States,  ii.  18 

Voting,  method  of,  ii.  20 

W 
Warrants,  i.  31 
"William  I.  of  Prussia,  accession  of,  i. 

299 
Woman    suffrage    in    Prussian    local 

elections,  i.  322 
Women  eligible  for  school  offices,  ii. 

28 
Writs,  common  law,  ii.  200  ;  will  not 

issue  where  there  is  an  adequate 

remedy,  ii.  203  ;  origin  of,  ii.  193  ; 

prerogative  in  character,   ii.    202  ; 

purpose  of,  204 ;  questions  consid- 

ered  on,  ii.  205 
Writs  ex  debito  justitice^  ii.  195 
Writs,  prerogative,  ii.  195 


Under-prefect  in  France,  i.  284 
Unjust  enrichment,  suits  against  offi- 
cers on  theory  of,  ii.  155,  159 


Zeugniss  der  Reife  necessary  for  en- 
trance into  German  civil  service,  ii. 

52 


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